New York Times: Appeals Court Allows Emoluments Suit Against Trump to Proceed

May 14, 2020

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WASHINGTON — A federal appeals court in Virginia on Thursday revived a lawsuit accusing President Trump of violating the Constitution by profiting from his Washington hotel, a decision that will most likely lead the Justice Department to appeal to the Supreme Court to keep the plaintiffs from gathering evidence in the case.

“We recognize that the president is no ordinary petitioner, and we accord him great deference as the head of the executive branch,” the majority opinion from the Fourth Circuit Court of Appeals said. “But Congress and the Supreme Court have severely limited our ability to grant the extraordinary relief the president seeks.”

The 15-member appeals court in Richmond met in December to consider whether a three-judge appellate panel had wrongly dismissed the lawsuit over the Trump International Hotel brought by the District of Columbia and the State of Maryland. The local jurisdictions were about to begin evidence-gathering when the panel threw out the case.

The Justice Department asked the full appeals court to either uphold the panel’s ruling or allow the department to appeal the lower-court judge’s procedural rulings against the president, an emergency form of relief that is rarely allowed when a case is in midstream.

The attorneys general for the District of Columbia and Maryland are arguing that Mr. Trump’s interest in the hotel violates the Constitution’s bans on accepting benefits, or “emoluments,” from state or foreign governments. Government officials from Maine to Saudi Arabia have patronized the 263-room luxury property.

The local jurisdictions claim they have standing to sue because the Trump hotel competes with hotels and convention centers in their areas.

The Justice Department contends that the president cannot be sued for violating the emoluments bans without the express authorization of Congress, and that the plaintiffs want to engage in a fishing expedition for documents for blatantly political reasons.

The appeals court split 9 to 6 over the decision. The two dissenting opinions and one concurring opinion revealed a wide gap between the judges. Eight of the nine judges who favored allowing the lawsuit to go forward were appointed by Democratic presidents. The ninth, Chief Judge Roger Gregory, was a recess appointment by President Bill Clinton and then was reappointed by President George W. Bush. All those in opposition were appointed by Republican presidents.

Writing for the majority, Judge Diana Gribbon Motz, who was appointed by Mr. Clinton, said Mr. Trump was asking for a drastic form of emergency relief on the grounds that the lower-court judge had abused his discretion and committed serious legal errors.

But she said that Judge Peter J. Messitte of United States District Court in Greenbelt, Md., had issued detailed written opinions, had applied the correct legal standards and had not acted arbitrarily. So the appeals court had no authority, she said, to halt the case.

In a dissenting opinion also signed by five other judges, Judge J. Harvie Wilkinson III, who was appointed by President Ronald Reagan, said the court was allowing itself to be used as a political tool to harass the president.

“Can we not see the political cloak we are asked to don?” he wrote. “No federal court has ever allowed a party to sue the president under the domestic emoluments clause.”

He added, “Would it not be fair for our fellow Americans to suspect that something other than law was afoot?”

In yet another opinion, four judges in the majority fired back. “The public’s confidence and trust in the integrity of the judiciary suffer greatly when judges who disagree with their colleagues’ view of the law accuse those colleagues of abandoning their constitutional oath of office,” wrote Judge James A. Wynn Jr., who was appointed by President Barack Obama.

Brianna Herlihy, a Justice Department spokeswoman, said the appeals court “erred by not even considering the merits of the president’s defenses.” She said the department “intends to seek further review in the Supreme Court.” Legal experts said the department would most likely request an administrative stay of the case while it prepared its appeal.

Karl A. Racine, the attorney general for the District of Columbia, and Brian E. Frosh, the attorney general for Maryland, applauded the decision. “The Fourth Circuit ruled that President Trump is subject to the same rules of the legal system as everyone else,” they said in a joint statement.

The lawsuit over the hotel has progressed significantly further than two similar emoluments cases working their way through other courts.

The Supreme Court is already weighing two cases on whether the powers of the presidency protect Mr. Trump from prosecutors and House committees seeking information about his business affairs. The court’s decision could have bearing on the emoluments cases.

Just blocks from the White House, the Trump International Hotel has been a magnet for lobbyists and for state, federal and foreign officials seeking to influence the president or those within his circle. The Trump Organization, which is owned by Mr. Trump and managed by his eldest sons, operates the hotel.

The firm holds a 60-year lease on the building with the federal General Services Administration, with payments of nearly $268,000 per month. Because of the pandemic, the hotel now sits mostly empty, and firm officials have been trying to renegotiate the lease.

Eric Trump, the president’s son, has said the firm wants only whatever relief the agency is granting other federal tenants, but the effort has underscored the conflicts of interest arising from the president’s interest in the business. The Trump Organization began trying to sell its lease last fall, but the pandemic has put its search for bidders on hold.

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