Donald Trump’s enemies have gotten creative lately in examining his past for evidence of lawbreaking. But their creativity has its limits. In Richmond, Va. this morning, a three-judge panel of the U.S. Appeals Court for the Fourth Circuit unanimously dismissed a lawsuit filed two years ago by the attorneys general for Maryland and the District of Columbia accusing Trump of illegally profiting from his continuing financial interest in the Trump International Hotel, located blocks from the White House. The suit alleged that he violated the Constitution’s Emoluments Clause barring presidents and other federal officials from accepting gifts or money from foreign and domestic government officials without congressional approval. The claims, wrote Judge Paul Niemeyer, were too “attenuated” and “abstract” to merit legal standing.
The Emoluments Clause (actually three separate clauses) of the U.S. Constitution is one of our primary safeguards against political corruption. The most relevant portion here, Article 1, Section 9, Clause 8, reads:
No Title of Nobility shall be granted by the United States: And no Person holding any Office or Profit or Trust under them, shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Apparently, Donald Trump was in violation of that clause. Or so Maryland Attorney General Brian Frosh and District of Columbia Attorney General Karl Racine believed. In June 2017, the pair filed suit against both The Trump Organization and President Trump himself in Maryland federal court. Frosh and Racine claimed that by continuing to maintain a financial interest in the Trump International Hotel while as president, Trump and various family members effectively were diverting revenues from nearby hotels and convention centers into their own pockets.
This seemed rather far-fetched. Aside from the fact that Congress has final say on such matters, Donald Trump had leased the property, the federally-owned Old Post Office Pavilion, for redevelopment through his consortium back in 2013, well before he declared his candidacy for president. And since taking office, he had made good on his promise to forward all foreign-based profits from the project to the U.S. Treasury. Yet on March 28, 2018, U.S. District Judge Peter Messitte, a Clinton appointee, granted certiorari, asserting that Trump’s investment in the hotel was causing “economic harm.” Applying a broad definition of emoluments, he wrote that the clause encompasses any “profit, gain or advantage” received “directly or indirectly” from a foreign government, a U.S. state government or federal agency. Making the procedural ruling especially ominous was that it opened up the possibility of a lengthy discovery process involving not only The Trump Organization’s financial records, but also the president’s personal income tax returns.
President Trump appealed this ruling to the U.S. Fourth Circuit Court of Appeals. And today a three-judge panel ruled 3-0 that the lawsuit has no standing, in the process nullifying any and all related subpoenas. The decision was rendered, moreover, “with prejudice,” meaning that the plaintiffs cannot refile the case at a later date. Attorneys General Frosh and Racine notwithstanding have vowed to explore further legal options. In a joint statement, the pair accused Trump of “brazenly profiting from the Office of the President in ways that no other President in History ever imagined.” As today’s decision was procedural (i.e., not based on the merits of the case), it is possible they eventually may get a hearing before the Supreme Court.
The circuit court panel rejected this view. President Trump’s retention of an ownership stake in the property, members concluded, did not constitute willful self-dealing of any sort. Indeed, Judge Paul Niemeyer, a George H.W. Bush appointee, in a stinging 36-page opinion, argued that the Trump brand name to some public officials might well be a liability to be avoided. He wrote:
Indeed, there is a distinct possibility – which was completely ignored by the District and Maryland, as well as by the district court – that certain government officials might avoid patronizing the Hotel because of the President’s association with it. And, even if government officials were patronizing the Hotel to curry the President’s favor, there is no reason to conclude that they would cease doing so were the President enjoined from receiving income from the Hotel. After all, the Hotel would still be publicly associated with the President, would still bear his name, and would still financially benefit members of his family.
More broadly, Judge Niemeyer strongly implied that the case never should have gone to court. “The District and Maryland’s interest in enforcing the Emoluments Clauses is so attenuated and abstract that their prosecution of this case readily provokes the question of whether this action against the president is an appropriate use of the courts, which were created to resolve real cases and controversies between parties,” he wrote.
President Trump, a man who knows victory when he sees it, sent out a pair of tweets. The case was a “Deep State and Democrat-induced Witch Hunt.” He added, “I don’t make money, but lose a fortune for the honor of serving and doing a great job as your President (including accepting Zero salary!).” It is unlikely that congressional Democrats are feeling such elation. Lawyers for a group of more than 200 Democrats in Congress this year have issued more than three dozen subpoenas of Trump’s business records, including those related to the hotel in this case. The president has vowed to block the release of such information and to fight “all the subpoenas.” The ruling today has made that task a lot easier.
Postscript: Nine days later, on July 19, U.S. District Judge Emmet G. Sullivan temporarily blocked 37 subpoenas filed by congressional Democrats to acquire President Trump’s financial records as part of a separate emoluments case. A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, all Obama appointees, had remanded the case to the district court after rejecting the administration’s request to dismiss the suit outright. Judge Sullivan previously ruled last month that the subpoena requests could proceed. The lawmakers are being represented by the Washington, D.C.-based Constitutional Accountability Center. The focus here is Trump’s stake in a number of properties, including Trump Tower (New York City) and the Mar-a-Lago Club (Palm Beach, Florida). This lawsuit, like the one filed by the Maryland and District of Columbia attorneys general, underscores a palpable fanaticism of President Trump’s opponents in gaining access to his personal and business records.