As if President Donald Trump isn’t facing enough challenges to his administration’s legitimacy, now he’s got another one. On March 28, U.S. District Judge Peter Messitte granted standing to a lawsuit filed last June by the attorneys general of the District of Columbia and Maryland alleging that the president, by continuing to profit from his Washington, D.C. hotel, is violating the constitutional ban on federal officials receiving gifts from domestic and foreign entities. According to Judge Messitte, his actions are causing “economic harm.” Yet evidence suggests that neither economics nor constitutional principle has much to do with this case.
Public officials in this country from the start have faced the pressure of being “bought and paid for.” Our Framers, recognizing the ever-present temptations of corruption, created safeguards to bar office holders from receiving presents, or “emoluments,” from outside parties. Article I, Section 6, Clause 2 of the Constitution, for example, bars sitting members of Congress from holding an executive branch office. And Article I, Section 9, Clause 8 prevents employees of the executive branch, from the president on down, from receiving outside gifts without the consent of Congress. The full text of the latter reads:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
The latter clause lately has taken on special significance.
Thus far there have been three lawsuits claiming that President Trump, by not severing his ties to certain business enterprises, has violated the Emoluments Clause. At least one is guaranteed a full hearing. On March 28, a Maryland federal judge, Peter J. Messitte, a Clinton appointee, granted standing to a suit alleging Trump, by retaining his interest in Trump International Hotel, located several blocks from the White House, has induced state and possibly foreign government officials to use the facilities rather than similar facilities elsewhere. In so doing, Trump has enriched himself at the public expense. Karl Racine and Brian Frosh, respectively, the attorney general for the District of Columbia and the State of Maryland, are claiming that their jurisdictions are facing an “intolerable dilemma” in having to choose between losing revenue and inviting retaliation by Trump’s people.
This appears to be a bizarre stretch of the definition of corruption. For one thing, the Constitution clearly states that only Congress can enforce bans on official emoluments. For another, President Trump has been directing profits to the U.S. Treasury, at least as visits by foreign officials to his hotel are concerned. Of the contribution made this February, George Sorial, chief compliance counsel for The Trump Organization, remarked: “This voluntary contribution fulfills our pledge to donate profits from foreign government patronage at our hotels and similar businesses during President Trump’s term in office.” Trump relinquished day-to-day management of his varied enterprises prior to taking office, while retaining the right to withdraw funds as he wishes.
The court wasn’t impressed. In a 47-page opinion, Judge Messitte, in rejecting the Justice Department’s request for a dismissal, concluded that the District of Columbia and Maryland governments have reason to believe that Trump’s continued ownership of the hotel has caused revenue losses on government-connected hotels and convention centers within these jurisdictions. He also asserted that Congress should not be assumed to have final say, effectively arguing that the clear intent of the Constitution is of passing significance.
The ruling opens the possibility of a drawn-out discovery process by attorneys by District of Columbia and Maryland attorneys of not only The Trump Organization’s financial records, but also the president’s tax returns. Indeed, Maryland Attorney General Brian Frosh admits to seeking discovery of each. Yet there are two reasons why the plaintiffs won’t prevail – and shouldn’t.
First, there is a recent precedent for finding favor with the Trump White House. On December 21, Manhattan federal judge George Daniels threw out a similar suit filed by the nonprofit Citizens for Responsibility and Ethics in Washington (CREW). “As the only political branch with the power to consent to violations of the Foreign Emoluments Clause,” Daniels wrote, “Congress is the appropriate body to determine whether, and to what extent, Defendant’s conduct unlawfully infringes on that power.” Judge Messitte, not of this view, offered this red herring as a footnote to his own review: “And suppose the Congress never undertakes to approve or disapprove the President’s receipt of such ‘emoluments.’ The President could continue to receive unlimited ‘emoluments’ from foreign and state governments without the least oversight and with absolute impunity.” In effect, he argued that if Congress decides against taking action, the judiciary should do the job in its place.
Second, the fact that government officials stay or dine at the Trump International Hotel in itself does not constitute an emolument or an ulterior motive for one. In granting certiorari, Judge Messitte noted that some foreign officials have stayed at the Trump International Hotel because the president’s family owns it, and that some foreign governments have canceled reservations at other hotels for the same reason. Yet this ignores any number of offsetting factors. First, the Trump Organization leased the property, the Old Post Office Pavilion, from the federal government’s General Services Administration back in 2013, well before he became a presidential candidate. Second, as promised, he has forwarded all profits to the U.S. Treasury. And third, the State of Maryland and the District of Columbia’s claim that Trump has diverting revenues from their respective convention centers is pure speculation. Maybe convention goers simply like the allure of the Trump International Hotel. Why must it be assumed that Trump’s continuing fiduciary interest in the project constitutes his misuse of public office?
This emoluments lawsuit, like the other two, should be considered a non-starter. But like the “Russian interference” suits, they have the capacity for generating loads of frustration, subpoenas and bad publicity for President Trump. Judge Messitte in particular is exactly the sort of person who has it in for President Trump on account of the latter’s alleged “racism.” It was Messitte who back in July 2014 had issued a ruling that explicitly omitted references to the Washington Redskins pro football team. The team name “Redskins,” as a chorus of misguided critics were alleging at the time, was a racist slur against Native Americans. Judge Messitte knew the tune well. “Pro football’s team is popularly known as the Washington ‘Redskins,’” he wrote, “but the Court will refrain from using the team name unless reference is made to a direct quote where the name appears.” The proper term, he emphasized, is “the Washington Team.” In the current case, another sort of virtue-signaling may take center stage.