Judges weigh Trump hotel suit
Attorneys general questioned on emoluments clauses
RICHMOND, Va. — A federal appeals court panel expressed skepticism Tuesday that President Donald Trump is illegally profiting from foreign and state government visitors at his luxury hotel in downtown Washington, D.C., and that his financial gain comes at the expense of local competitors.
The three-judge panel of the 4th U.S. Circuit Court of Appeals was reviewing a case filed by the attorneys general of Maryland and the District of Columbia involving anti-corruption provisions of the Constitution in the emoluments clauses.
The once-obscure clauses were designed to prevent undue influence on government officials but have never before been applied in court to a sitting president.
One judge, Dennis Shedd, suggested that the president may actually be driving up business at other local hotels because of numerous people drawn to Washington to protest Trump’s policies, who would not choose to stay at the president’s namesake hotel.
Another, Paul Niemeyer, noted that the president had already stepped back from day-to-day management of the Trump International Hotel. Forcing the president to give up his financial interest would not remove the Trump name from the business, the judge said, and foreign dignitaries would still book rooms and events at the venue.
The judges repeatedly pressed the attorney representing D.C. Attorney General Karl Racine and Maryland Attorney General Brian Frosh, both Democrats, about the specific remedy the two jurisdictions are seeking and about their intentions.
“What solves the concerns you have?” Shedd said, asking if divestment of a hotel or putting it into a blind trust might be an answer.
“You filed the lawsuit and you don’t even know what real-world relief would satisfy,” Niemeyer said, addressing attorney Loren AliKhan. “You seem to be ducking the question.”
AliKhan said Trump, in his role as president, is violating the foreign and domestic emoluments clauses of the Constitution by choosing to maintain his business interests.
“The official action is the accepting of emoluments, which is a violation of the Constitution,” AliKhan told the court. Divestment, she said, might be an “option.”
The third judge on the panel, Marvin Quattlebaum, is a recent Trump nominee to the court. Quattlebaum appeared concerned about a broad definition of emoluments. Would it mean, he asked, that presidents would have to give up Treasury bills and federally-insured bank accounts?
“My view is it covers any profit, gain or advantage,” AliKhan said of an emolument but stopped short of saying a Treasury bill or other passive investment would qualify.
The Trump administration attorney told the court that Maryland and D.C. have no authority to sue the president in his official capacity over payments the president’s business accepts from state and foreign governments.
“The president is unique” in our system of government, said Justice Department attorney Hashim Mooppan. “He’s not just any old inferior officer. … That’s why he gets absolute immunity.”
The panel specifically is considering whether the District and Maryland have legal grounds — or standing — to sue the president in the first place. And the appeals court will consider the president’s request to dismiss the case outright or to take the unusual step of ordering the lower-court judge to permit a midstream appeal.
A federal judge in Maryland allowed the case over the Trump hotel to move forward and adopted a broad definition of the ban to include “profit, gain, or advantage” received “directly or indirectly” from foreign, federal or state governments.
Trump and his lawyers appealed, saying in court filings that the president should be shielded from such liability and legal distractions. They also are trying to stop an order from U.S. District Judge Peter Messitte authorizing dozens of subpoenas to federal government agencies and Trump’s private business entities.
The subpoenas seek documents — including marketing materials targeted to foreign embassies, credit card receipts and restaurant reservation logs — that relate to Trump’s Washington, D.C., hotel.
“The complaint rests on a host of novel and fundamentally flawed constitutional premises, and litigating the claims would entail intrusive discovery into the president’s personal financial affairs and the official actions of his Administration,” according to the Justice Department’s filing.
The Richmond-based court, which takes appeals from Maryland, temporarily put the subpoenas on hold while the case is pending.
The provisions being reviewed by the 4th Circuit have never before been tested at a federal appeals court. One bars federal officers from taking presents, or emoluments, from foreign governments. The other prohibits presidents from taking side payments from individual states.
The Justice Department had urged Messitte to dismiss the case, arguing that the clauses were meant to stop officials from taking bribes, not to prevent them from doing business.