October 15, 2019

In a rare step, the Fourth Circuit announced Tuesday that it will rehear arguments over whether Maryland and the District of Columbia can pursue allegations that President Donald Trump's ownership stake in the Trump International Hotel violates the U.S. Constitution's emoluments clause.

The appeals court's unsigned order set a Dec. 12 date to hear arguments en banc, meaning all the circuit's active judges will participate rather than just a three-judge panel. The order says a majority of the circuit's judges voted to rehear the case, suggesting there may be an appetite to reverse the unanimous three-judge decision that quashed the lawsuits.

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The "foreign" emoluments clause prevents anyone "holding any office of profit or trust" from accepting titles, emoluments — payments — or offices from any foreign state unless explicitly approved by Congress. The "domestic" emoluments clause prevents the president from receiving any emolument from the federal government or any U.S. state beyond a standard salary.

The Trump International Hotel is marketed to, and patronized by, both foreign and domestic government officials, effectively resulting in money from those officials flowing to the president, violating the foreign clause, D.C. and Maryland said.

And because the hotel is housed in the Old Post Office building, a federally owned building leased from the U.S. General Services Administration, Trump had effectively received a domestic benefit from the GSA, they claimed. The GSA had contentiously ruled in March 2017 that the president was in compliance with the lease — which had a clause preventing government officials from sharing in the lease — and amended the lease, they noted.

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The cases before the Fourth Circuit are not the only lawsuits alleging emoluments. A split Second Circuit panel last month revived a suit by restaurateur and hotelier Eric Goode. Congressional Democrats also have a case pending in U.S. District Court for the District of Columbia.

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

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