August 18, 2019

Appeals Court Judges Appear Skeptical of Emoluments Case Against Trump

Appeals Court Judges Appear Skeptical of Emoluments Case Against Trump


WASHINGTON — A panel of federal appeals court judges on Tuesday sharply challenged the legal basis for a lawsuit alleging that President Trump’s profits from his luxury Washington hotel violate the Constitution’s anti-corruption clauses.

The three-judge panel of the United States Court of Appeals for the Fourth Circuit in Richmond, Va., appeared much less sympathetic to the lawsuit than the federal district judge in Maryland who has overseen the case thus far. The suit, filed by the attorneys general of Washington, D.C., and Maryland, alleges that Mr. Trump’s decision to retain ownership of the hotel after he took office violates the Constitution’s emoluments clauses.

During the hearing, Judge Dennis W. Shedd, the panel’s senior jurist, suggested the lawsuit seemed to seek to penalize the president for being a successful business executive. “You even want him fired from ‘The Apprentice,’” he said, apparently referring to reports that the president benefited from the purchase of rights for the show by government-owned foreign broadcasters.

The lawsuit, the first of its kind, asserts that Mr. Trump is violating the clauses in the Constitution that restrict federal officials from accepting government-bestowed financial gains or “emoluments,” other than their salaries. The Justice Department asked the appeals court to intervene after a series of rulings against the president by Judge Peter J. Messitte of the United States District Court in Greenbelt, Md.

Although Judge Messitte limited the case to allegations that Mr. Trump is profiting from foreign- and state-government guests who patronize the Trump International Hotel, he has allowed it to proceed to the evidence-gathering stage over vigorous objections by the Justice Department.

Legal experts said the appeals court judges could make several moves in the president’s favor, including allowing the department to appeal the whole case on an emergency basis or sending it back to the lower court with instructions to Judge Messitte to reconsider the merits of some of his decisions.

The attorneys general for Maryland and the District of Columbia have asserted that the Trump hotel is unfairly siphoning off business and damaging competitors in their jurisdictions. Judge Messitte ruled that they had enough legal standing for the suit to go forward.

But Hashim M. Mooppan, a deputy assistant attorney general representing the federal government, told the appeals court judges that the president was immune from such claims. “This case should be over,” he said. “The president is unique.”

He added: “He is not any old inferior officer like the postmaster general. They can’t point to any basis in either case law or history to subject the president of the United States” to such demands.

The judges suggested that the plaintiffs seemed to have no clear notion of what exactly they wanted Mr. Trump to do, should he be found to have violated the emoluments bans.

They repeatedly asked Loren AliKhan, the solicitor general for the District of Columbia, whether the local jurisdictions were seeking to force Mr. Trump to sell the hotel, put the asset into a blind trust or simply ban state and foreign government guests at that property.

“You filed the lawsuit and you don’t even know what actual, real-world relief you think would satisfy your claim of violation,” Judge Shedd said.

When Ms. AliKhan responded that the lower court would decide the proper remedy, Judge Paul V. Niemeyer scoffed: “The district court is going to make this up?”

The third judge on the panel, A. Marvin Quattlebaum Jr., focused on what constitutes an illegal emolument. Courts have never before addressed that issue.

The plaintiffs have argued that it should be defined as any government-bestowed profit, gain or advantage, other than a salary. But Judge Quattlebaum asked whether that would force Mr. Trump to sell his Treasury bonds, since the interest constituted profit.

At a news conference after the hearing, the local attorneys general expressed confidence that they would prevail. Despite the rain of harsh questions, Karl A. Racine, the attorney general of the District of Columbia, said, “I did not take anything from their tone.”



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