In the News

“4th Circ. Revives Emoluments Case Against Trump,” Law360

May 14, 2020

The Fourth Circuit on Thursday rejected President Donald Trump’s request to throw out a lawsuit by Maryland and the District of Columbia over allegations that his ownership stake in the Trump International Hotel violates the U.S. Constitution’s emoluments clause.

The appeals court voted 9-6 to allow the case to move forward at a Maryland district court after a three-judge panel unanimously found in July that Maryland Attorney General Brian Frosh and D.C. Attorney General Karl Racine, both of whom are Democrats, lacked legal grounds to sue.

Their suit, lodged in June 2017, alleges that Trump’s business interests violate the emoluments clause that prohibits gifts or payments from foreign powers, and that he’s unlawfully benefiting financially from the foreign and domestic government officials who stay at the Trump International Hotel on Pennsylvania Avenue in Washington, D.C.

The appeals court’s 15 active judges, who heard oral arguments in December, did not rule on the merits of the case. But U.S. Circuit Judge Diana Motz, writing for the majority, found some of the government’s legal arguments are “puzzling.” The president was specifically seeking a writ of mandamus to either direct the district court to certify his interlocutory appeal to dismiss the case or immunize him from the suit.

Judge Motz contends that the president’s request to end the suit at this stage is premature because he’s shortcutting the federal court’s formal litigation process by urging the circuit court to weigh in on the matter before the trial court judge even manages discovery for a potential trial.

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The order also dismissed Trump’s assertion that his emoluments-related actions are judicially unreviewable, ruling that this reasoning conflicts with “our system of government.”

“The Framers, concerned about the corrosive effect of power and animated by fears of unduly blending government powers, dispersed the authority to enforce the law and the authority to interpret it,” Judge Motz explained. “To hold otherwise would mean that the president alone has the ultimate authority to interpret what the Constitution means. Allowing the president to be the final arbiter of both the interpretation and enforcement of the law — as the dissents would — would gravely offend separation of powers.”

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The en banc ruling came more than three months after a D.C. Circuit panel dismissed a similar emoluments case brought by more than 200 congressional Democrats over claims that Trump has unlawfully profited from his presidency.

The three-judge panel unanimously concluded that lawmakers lacked standing to pursue their claims. In the Supreme Court’s 1997 Raines v. Byrd ruling, the panel noted that individual members of Congress can sue the executive branch even if they lack personal standing as long as they can show institutional injury, such as vote nullification. But they did not in this case, the panel said, adding that the 215 lawmakers in the suit are not the majority of Congress.

Last September, the Second Circuit revived a suit brought by restaurateur and hotelier Eric Goode, who claimed Trump may have lured dignitaries to his Trump-branded establishments, hurting Goode’s and others’ high-end hospitality businesses. But the DOJ later asked the full circuit court to reconsider the three-judge panel’s decision.

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Maryland and D.C. are represented by their attorneys general offices, Citizens for Responsibility and Ethics in Washington, Cohen Milstein Sellers & Toll PLLC and Gupta Wessler PLLC.

The complete article can be viewed here.