In a decision handed down late last week, a Federal District Court Judge is allowing a case filed by Maryland and the District of Columbia alleging that President Trump is acting in violation of the Constitution’s Emoluments Clause to go forward, opening up the possibility of significant discovery regarding the President’s private business activity:
WASHINGTON — A lawsuit accusing President Trump of violating the Constitution by maintaining a financial interest in his company’s Washington hotel cleared a critical hurdle on Wednesday when a federal judge allowed the case to move forward.
In the first judicial opinion to define how the meaning of the Constitution’s anticorruption clauses should apply to a president, Judge Peter J. Messitte of the United States District Court in Greenbelt, Md., said the framers’ language should be broadly construed as an effort to protect against influence-peddling by state and foreign governments.
He ruled that the lawsuit should proceed to the evidence-gathering stage, which could clear the way for an examination of financial records that the president has consistently refused to disclose. The Justice Department is expected to forestall that by seeking an emergency stay and appealing the ruling.
The two constitutional clauses at issue restrict a president’s ability to accept financial benefits or “emoluments” from domestic or foreign governments, other than his official salary. No federal judge before has ever interpreted what those bans mean for the president.
The plaintiffs in the lawsuit, the District of Columbia and the State of Maryland, say that Mr. Trump is violating those bans by accepting profits from the Trump International Hotel, a five-star hotel just blocks from the White House that is frequented by foreign and state officials. The judge earlier ruled that the local jurisdictions had standing to sue because the Trump hotel arguably siphons off business from their convention centers or hotels.
Mr. Trump has resisted efforts to force him to provide more details about his personal finances, and in particular has refused to release his tax returns. Questions about Mr. Trump’s possible business dealings in Russia or with Russians have come up in connection with the inquiry being conducted by the special counsel, Robert S. Mueller III.
Before taking the oath of office, Mr. Trump resigned his role in his company, the Trump Organization, but retained his ownership and turned management over to his two oldest sons, Eric and Donald Jr.
The Justice Department had sought to dismiss the case, arguing that the constitutional restrictions do not apply to Mr. Trump’s interest in the hotel. But the judge said the department’s lawyers were defining an emolument far too narrowly.
“Sole or substantial ownership of a business that receives hundreds of thousands or millions of dollars a year in revenue from one of its hotel properties where foreign and domestic governments are known to stay (often with the express purpose of cultivating the president’s good graces) most definitely raises the potential for undue influence, and would be well within the contemplation of the clauses,” he wrote in a 52-page opinion.
(…)
Judge Messitte seemed especially struck by one example cited by the plaintiffs. He noted that when Paul LePage, the Republican governor of Maine, visited Washington to meet with Mr. Trump on official business in February 2017, he and his staff stayed at the Trump International Hotel.
At a subsequent news conference with the governor, the president announced that he was reviewing decisions related to national monuments and parks that were adopted the year before by the Obama administration and opposed by the governor. The governor’s spokeswoman has said that Mr. LePage did not choose the Trump hotel in an attempt to please the president.
The Attorneys General of Maryland and the District of Columbia, as well as Norm Eisen of Citizens for Responsibility and Ethics in Washington, have an Op-Ed in today’s New York Times:
Whether or not the president has actually been corrupted in such a way, his actions in violation of the clauses have raised widespread concern and the perception at home and abroad that he can be bought. This is why our jurisdictions came to the conclusion that the only avenue for protecting our citizens was to bring this lawsuit — to, as Alexander Hamilton wrote in Federalist 73, protect the country from a president whose business entanglements might allow foreign actors to “tempt him by largesses, to surrender at [his] discretion his judgment to their inclinations.”
This ruling represents a major leap forward in understanding how Mr. Trump and his family are profiting off the presidency. The court has already ordered the preservation of Mr. Trump’s business records. We plan to examine them expeditiously and carefully when our lawsuit enters the discovery phase to uncover the extent of Mr. Trump’s violations through his Washington, D.C., hotel, where an endless retinue of foreign and domestic governments have spent lavish amounts of money since the election, all to the president’s financial benefit. (Though his family members and longtime associates run the Trump Organization businesses, he retains ownership.)
Wednesday’s ruling was not the last in this case, but the decision has instant ramifications far beyond the District of Columbia and Maryland. By ruling that the term “emoluments” means, and that the founders intended it to mean, profit, gain or advantage, we know that other instances of profit, gain or advantage that Mr. Trump receives from foreign or domestic governments, even if not the subject of this lawsuit, violate the Constitution. Other plaintiffs may be able to challenge them. Mr. Trump apparently agrees that other government officials should not “monetize their public service” — which is why he is threatening to revoke the security clearances of some of his critics. We should apply the same standard to him.
By rejecting the president’s argument that the Emoluments Clauses merely prohibit the outright bribing of federal officials, Judge Messitte recognized that the framers of our Constitution created a powerful safeguard against corruption that was “intended to embrace and ban anything more than de minimis profit, gain or advantage offered to a public official in his private capacity as well, wholly apart from his official salary.” We intend to follow this constitutional path and bring to light the president’s commercial entanglements that have remained hidden for too long. It is our constitutional duty to protect our citizens from the harms Mr. Trump is causing by his violations of the Constitution — and to help safeguard our country from undue influence, foreign and domestic.
The claims being made against Trump are based on two provisions of the Constitution that, until this ruling, have never been litigated before or ruled upon by a Judge at any level of the Federal Judiciary or in any of the states in the 229 years since the Constitution was ratified.The first provision, which has been called the “Foreign Emoluments Clause” is found in Article I, Section Nine, Clause 8 of the Constitution and prohibits any Federal official from receiving without Congressional consent “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.” The second clause, which has been called the “Domestic Emoluments Clause” can be found in Article II, Section 1, Clause 7 and states that the President “shall not receive within that Period any other Emolument from the United States or any of them.” Generally speaking, an “emolument” is defined as ” the returns arising from office or employment usually in the form of compensation or perquisites.” ‘
There is no record that these clauses of the Constitution have been raised or litigated with respect to any President since George Washington first took the Oath of Office in 1789 and no record of any legal proceeding in which a court of record has ruled on the application of these clauses in any specific case. Despite this fact, there is a long history of Presidents of the United States receiving gifts, including gifts that potentially have significant value, from foreign leaders and foreign nations. Typically, these gifts are given as part of official visits by foreign heads of government or heads of state to the United States, or official visits of the President to foreign nations during his time in office. Under a strict reading of the Foreign Emoluments Clause, these gifts would appear to be barred, but rather than being prosecuted for accepting them previous Presidents have been permitted to receive them as long as they are properly reported by the White House. At the very least, though, this history raises legitimate questions about what the clauses mean and whether they are being violated in this case. Because of all that, the Judge’s ruling is groundbreaking, and it could lead to some serious headaches for the President going forward.
This ruling is based almost entirely on the question of what constitutes an “emolument” under either of the clauses and since there is no court guidance on the issue the ruling that Judge Missette made here today is likely to be influential in future court cases dealing with the same issue. The Plaintiffs argued in their pleadings that given the fact that the President profits each time any domestic or foreign officials spend time and money at a Trump property, they are providing a benefit to the President that is banned by these clauses. The President’s lawyers, on the other hand, argued for a much narrower reading of the clauses that defined forbidden emoluments as something that the President received that was directly related to, or in exchange for, some action that he took as part of his official duties. In the end, Judge Messitte adopted the broader reading of the clauses advocated by the Plaintiffs and, once he did that, the result in the case was rather inevitable. Before he got to that point, though, Messette did as good as job as he could to look to the history behind the clauses to make a case for why this broader reading is the correct one, and it’s honestly quite a persuasive argument. Whether the appellate courts agree with him remains to be seen, of course, but for the time being this will be the opinion that will guide other courts dealing with similar legal issues.
This ruling is just the latest development in a series of cases raising claims under the Emoluments Clauses that have been filed against the President since he took office. Previously in this same case, Judge Messitte rejected a motion filed by the Justice Department arguing that Maryland and the District of Columbia lacked standing to bring the claim against Trump. In addition to this lawsuit, there is a separate lawsuit pending in the U.S. District Court in Washington, D.C. that was filed by a group of more than 200 Democratic Congressmen and Senators. There haven’t been any significant developments in that case, but one presumes that it is at the Motion to Dismiss stage much as this case was prior to this ruling and that we can expect a ruling out of the court at any time. Additionally, there was a case that had been filed in New York by a public interest group and a group of businessmen who claimed that they were harmed by the fact that Trump’s properties were continuing to operate under his name even after he became President. In that case, though, the Judge dismissed the case on the ground that the Plaintiff’s had failed to establish that were being harmed by the alleged violations of the Emoluments Clauses in a way that would give them legal standing to sue the President.
Trump’s attorneys will no doubt seek to appeal this ruling to the Fourth Circuit Court of Appeals but unless that court says otherwise, what this ruling means is that the case can now move forward toward what would eventually be a ruling on the merits, and the fact that Judge Missette has ruled for the Plaintiffs here bodes well for their success at that phase of the proceedings. In the short term, this means that the Plaintiffs will be permitted to conduct discovery regarding the issues in the case, specifically including questions, document requests, and depositions regarding the revenues and business operations of Trump’s Washington, D.C. hotel. Potentially, this could also include significant discovery related to the President’s personal finances and records pertaining to the question of how involved he may still be in the daily operations of The Trump Organization and its numerous and various subsidiaries. Ordinarily, this information obtained in discovery is not made publicly available and it’s possible that Trump’s attorneys, as well as the attorneys for the Federal Government, could ask the Judge to rule that the material obtained in discovery must remain confidential unless it ends up being used in the trial. With or without such an order, though, it’s probable that at least some of this information could become public in any case. In any case, this ruling just adds to the legal headaches for the President.
Here’s Judge Missette’s opinion:
District of Columbia Et Al v. Trump Opinion by Doug Mataconis on Scribd
