A lawsuit accusing President Trump of violating the Constitution’s emoluments clause can proceed.
On Thursday, the 4th Circuit Court of Appeals revived the emoluments lawsuit against Trump by a 9-6 vote, passing the case back to a judge in Maryland who has consistently ruled against the president. It remains possible that discovery related to foreign government stays at the Trump International Hotel in Washington, D.C., might begin before the 2020 election.
“We recognize that the president is no ordinary petitioner, and we accord him great deference as the head of the executive branch. But Congress and the Supreme Court have severely limited our ability to grant the extraordinary relief the president seeks,” Judge Diana Motz wrote for the majority decision. “Because the president has not established a right to a writ of mandamus, we deny his petition.”
The lawsuit involves the president’s hotel in Washington, D.C., located on Pennsylvania Avenue just blocks away from the White House. Top state lawyers, and many Democratic lawmakers, have said the president is illegally profiting from foreign and state government patrons to the Trump International Hotel.
A panel of three judges previously examined the lawsuit, initiated by the attorneys general of Maryland and D.C., but discarded the challenge, saying there was no proper legal grounds or standing.
Motz, a Clinton appointee who has served on the appeals court since 1994, attempted to shoot down the Justice Department’s arguments in a lengthy opinion reviving the controversial lawsuit.
“The discovery here — business records as to hotel stays and restaurant expenses, sought from private third parties and low-level government employees — implicates no executive power. The president has not explained, nor do we see, how requests pertaining to spending at a private restaurant and hotel threaten any executive branch prerogative,” Motz said in the majority opinion. “Of course the president must comply with the law. The duty to do so, however, is not a uniquely official executive duty of the president, for in the United States, every person — even the president — has a duty to obey the law.”
The Constitution’s foreign emoluments clause states that “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 domestic emoluments clause within the governing document declares that “the President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”
Motz said, “The duty to obey these particular laws — the Constitution’s Emoluments Clauses — flows from the president’s status as head of the executive branch, but this duty to obey neither constitutes an official executive prerogative nor impedes any official executive function.”
For Trump to obtain relief in the case now, the Supreme Court will need to block the suit going forward.
Judge J. Harvie Wilkinson III, appointed by former President Ronald Reagan to the appeals court, wrote an opinion signed on to by the dissenting judges, saying he would have sent the case back to the lower court to be dismissed. He argued that judges can overstep their bounds just as much as the executive branch.
“I make but one point — that the federal judiciary, no less than the president, is subject to the law. And here the federal judiciary has sorely overstepped its proper bounds. My friends in the majority chide this dissent for its ‘dramatics.’ Instead, they give this case the ho-hum treatment as though it were no different from our ordinary fare,” Wilkinson said. “I intend no diminution of the ordinary case to note that this case is extraordinary. The majority is using a wholly novel and nakedly political cause of action to pave the path for a litigative assault upon this and future Presidents and for an ascendant judicial supervisory role over presidential action.”
“The legal foundations for this lawsuit are non-existent,” Wilkinson said.
“It is a fanciful construct that invites the courts to create rights and duties from thin air,” he said. “It opens the door to litigation as a tool of harassment of a coordinate branch with notions of competitor standing so wide and injury-in-fact so loose that litigants can virtually haul the Presidency into court at their pleasure.”
“Do I fear for an enfeebled executive?” Wilkinson asked. “No I do not. But the metastatic spread of litigation, which this case represents, would divert the energies of any institution from what should be its primary focus of good governance.”
