Trump seeks to dis­miss Md. law­suit over emol­u­ments

Baltimore Sun - - NATION & WORLD - By John Fritze john.fritze@balt­sun.com twit­ter.com/jfritze

WASH­ING­TON – Pres­i­dent Don­ald Trump moved Fri­day to dis­miss a law­suit filed by Mary­land and the Dis­trict of Columbia al­leg­ing that his real es­tate em­pire has re­ceived un­con­sti­tu­tional gifts from for­eign gov­ern­ments since he took of­fice.

In a fil­ing in U.S. Dis­trict Court in Green­belt, Jus­tice De­part­ment at­tor­neys said that nei­ther Mary­land nor the Dis­trict has stand­ing to sue the pres­i­dent over the con­tentious is­sue. They also ar­gued that the lo­cal ju­ris­dic­tions are mis­read­ing the Emol­u­ments Clause of the Con­sti­tu­tion.

Trump has been dogged since be­fore the elec­tion by ques­tions about how he would sep­a­rate his vast busi­ness hold­ings from the White House. Much of the fo­cus of that crit­i­cism has cen­tered on the lux­ury ho­tel the pres­i­dent’s com­pany man­ages on Penn­syl­va­nia Av­enue in Wash­ing­ton — a site that fre­quently hosts di­plo­mats and their staff.

At­tor­ney Gen­eral Brian E. Frosh, a Demo­crat, filed a law­suit in June claim­ing in part that Mary­land loses tax rev­enue be­cause its ho­tels com­pete with Trump In­ter­na­tional Ho­tel. The plain­tiffs also said states that grant zon­ing vari­ances or tax breaks to a Trump prop­erty could win fa­vor at the White House, harm­ing those that do not.

In a 78-page mo­tion filed late Fri­day, Trump ad­min­is­tra­tion at­tor­neys wrote that Mary­land and the Dis­trict of Columbia had failed to demon­strate how they had ac­tu­ally been harmed by the ho­tel. The Jus­tice De­part­ment wrote that much of the law­suit was based on spec­u­la­tive claims.

“They as­sume that the op­er­a­tion of a sin­gle lux­ury ho­tel in down­town Wash­ing­ton, D.C., would have an ex­traor­di­nar­ily wide-rang- ing im­pact on D.C.’s and Mary­land’s economies,” Trump’s at­tor­neys wrote in the mo­tion. “It is highly doubt­ful that the eco­nomic rip­ple ef­fect of the Trump In­ter­na­tional Ho­tel would have any per­cep­ti­ble im­pact on [Mary­land and D.C.] venues.”

A spokes­woman for Frosh said her of­fice is re­view­ing the mo­tion.

The pres­i­dent has al­ready moved to dis­miss a sim­i­lar case filed this sum­mer by Demo­cratic law­mak­ers in Congress us­ing many of the same ar­gu­ments. But the Mary­land lit­i­ga­tion marked the first time a state gov­ern­ment sued Trump over the mat­ter, and so the le­gal ques­tions at hand are in­flu­enced by a dif­fer­ent set of facts.

In both cases, the ad­min­is­tra­tion ar­gues that the Emol­u­ments Clause was in­tended to cover pay­ments made in ex­change for of­fi­cial ac­tions, not a blan­ket pro­hi­bi­tion on com­mer­cial trans­ac­tions. Trump an­nounced shortly be­fore his in­au­gu­ra­tion that he would re­tain own­er­ship of his real es­tate com­pany but turn its daily op­er­a­tion over to mem­bers of his fam­ily. Ethics spe­cial­ists from both par­ties, who had pushed Trump to put his com­pa­nies into a blind trust, have said the ar­range­ment has done lit­tle to quiet con­cerns.

A cen­tral ques­tion for Emol­u­ments Clause claims is who has stand­ing to sue — in other words, who has been harmed by the de­fen­dant’s ac­tions. The at­tor­neys gen­eral al­leged in their suit that Trump has harmed Mary­land's "sovereign in­ter­ests."

To make that ar­gu­ment, Frosh reached back to the na­tion's found­ing. He said the Emol­u­ments Clause was a "ma­te­rial in­duce­ment" — a pro­vi­sion in­tended to en­tice states to join the union — be­cause many, in­clud­ing Mary­land, had sim­i­lar pro­hi­bi­tions on ac­cept­ing gifts in their own con­sti­tu­tions. Not en­forc­ing the rule, they said, is tan­ta­mount to the fed­eral gov­ern­ment break­ing a 229-year-old prom­ise.

The Jus­tice De­part­ment at­tor­neys wrote that ac­cept­ing that line of ar­gu­ment would open the fed­eral gov­ern­ment up to lit­i­ga­tion on any num­ber of is­sues that a state could claim it be­lieved was a con­di­tion of join­ing the union. The plain­tiffs’ “novel and far-reach­ing claim that a state can seek to en­force what it pur­port­edly bar­gained for when en­ter­ing the union is well out­side the tra­di­tional bounds” of ju­di­cial doc­trine, the at­tor­neys wrote. The law­suit, they added, “con­tains no plau­si­ble al­le­ga­tions that del­e­gates to Mary­land’s rat­i­fy­ing con­ven­tion in 1788 held the state’s cur­rent view of the Emol­u­ments Clauses, much less that such [a] view was ma­te­rial to their de­ci­sion to rat­ify the Con­sti­tu­tion.”

The law­suit is ar­guably the most prom­i­nent case in a broader ef­fort by Frosh to chal­lenge Trump and his ad­min­is­tra­tion’s poli­cies af­ter the Gen­eral As­sem­bly granted him the power this year to do so uni­lat­er­ally. Frosh joined an­other law­suit this month chal­leng­ing the ad­min­is­tra­tion’s im­mi­gra­tion poli­cies, and has filed or joined other cases deal­ing with chem­i­cal ac­ci­dents, pes­ti­cide reg­u­la­tion, ve­hi­cle emis­sions and off­shore drilling.

Repub­li­can Gov. Larry Ho­gan has di­rected Frosh to file two law­suits as well. One case de­mands the En­vi­ron­men­tal Pro­tec­tion Agency to ad­dress air pol­lu­tion from up­wind states. The other deals with new air traf­fic con­trol pat­terns that have drawn com­plaints from neigh­bors of the Bal­ti­moreWash­ing­ton In­ter­na­tional Thur­good Mar­shall Air­port. Frosh filed the EPA law­suit on Wed­nes­day.

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