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Federal judge appears ready to let Md.’s emoluments claim proceed

Maryland Attorney General Brian Frosh, left, accompanied by District of Columbia Attorney General Karl Racine, speaks during a news conference in Washington, Monday, June 12, 2017, to discuss their lawsuit filed against President Donald Trump. The lawsuit cites Trump's leases, properties and other business "entanglements" around the world as the reason for the suit, saying those posed a conflict of interest under a clause of the Constitution. (AP Photo/Alex Brandon)

Maryland Attorney General Brian Frosh, left, accompanied by District of Columbia Attorney General Karl Racine, speaks during a news conference in Washington in June to discuss their emoluments lawsuit filed against President Donald Trump. A federal judge hearing a motion to dismiss the lawsuit Thursday said it ‘puzzles’ him why Maryland and D.C. have not sued Trump as a private citizen. (AP file photo/Alex Brandon)

A federal judge appears poised to permit Maryland and the District of Columbia to proceed with their lawsuit alleging President Donald Trump unconstitutionally received personal benefits via his hotel holdings while in office so long as the attorneys general amend their complaint to include not only Trump the president but Trump the private citizen.

Senior U.S. District Judge Peter J. Messitte said the alleged benefits – or “emoluments” in constitutional parlance – accrued to citizen Trump, not the commander-in-chief.

Messitte also rebuffed a Justice Department attorney’s argument that federal judges lack the authority to tell presidents to stop doing something in their official capacity, with the judge saying the asserted prohibition does not apply to private citizens.

“They (Maryland and D.C.) are not challenging a presidential function,” said Messitte from the federal courthouse in Greenbelt. “It is what he (Trump) is doing extracurricularly that they are challenging.”

Messitte called it not unusual for government officials to be sued in their public and private capacities for alleged wrongdoing, noting that often occurs to law enforcement officers in brutality cases. He said it “puzzles” him why Maryland and D.C. have not sued Trump as a private citizen.

Maryland Attorney General Brian E. Frosh and Karl A. Racine, D.C.’s attorney general, later said they would not wait for Messitte’s ruling on the dismissal motion before amending their complaint to include Trump the private citizen.

“We’re open to amending the complaint to sue him in his personal capacity,” Frosh said. “We’re happy to sue him as Donald Trump.”

Frosh criticized the Justice Department’s argument foreclosing Emoluments Clause claims against the president, saying that could enable Trump to violate the constitutional provision without end.

“He can violate the Constitution and he’s not accountable for it?” Frosh said. “I don’t think that’s how American democracy works.”

Racine said an amended complaint would be filed “as soon as possible.”

Influence of office

Frosh and Racine, both Democrats, allege that Trump, a Republican, has violated the Emoluments Clause by using the influence of his office to profit in the United States and abroad from his real-estate holdings.

The Emoluments Clause permits the president to collect a salary but bars him from receiving “any other emolument” from the United States or any state or to accept “any present, emolument, officer, or title, of any kind whatever, from any king, prince or foreign state” without congressional consent.

The attorneys general contend Trump has unconstitutionally profited from leases of Trump properties by foreign-government-owned entities; the purchase and ownership of condominiums in Trump properties by foreign governments; the use by foreign governments and diplomats of accommodations, restaurant purchases and venues for events at Trump hotels; and the continuation of the U.S. General Services Administration’s lease at Trump’s Washington, D.C., hotel.

Trump’s alleged violations specifically harm Maryland and D.C.’s capacity as proprietors of businesses that compete with the president’s businesses, to the extent that businesses owned by him or his affiliated enterprises attract customers and divert them from businesses that Maryland and D.C. own, license, or tax, the attorneys general contend in their complaint.

Maryland and D.C. are also harmed by perceived or actual pressure to grant special treatment to the president and his extensive enterprises, or else be placed at a disadvantage with other states and governments that have granted or will grant special treatment, the complaint states. Maryland and D.C. also have an interest in protecting their economies and their residents, who, as the Trump hotel’s local competitors, are injured by decreased business, wages, and tips resulting from economic and commercial activity diverted to the president and his business enterprises, the attorneys general contend.

But Brett Shumate, a deputy assistant U.S. attorney general arguing for dismissal, said these asserted economic and tax-related injuries to Maryland and D.C. are “speculative,” “competitive,” “abstract harms” and “generalized grievances” that lack the imminence, concreteness and specificity needed to provide a valid cause of action and survive a motion to dismiss.

If injury to a business provides a cause of action, Shumate suggested perhaps the Gaylord National Resort & Convention Center in Oxon Hill could sue the president for losing business to the Trump International Hotel in D.C. That is, he added, if it were permissible to sue the president under the Emoluments Clause.

Maryland Solicitor General Steven M. Sullivan, arguing against the dismissal motion, said the Emoluments Clause provides “clear prohibitions” on a president profiting financially from that office.

“No one is above the law,” Sullivan added.

Frosh and Racine seek a declaratory judgment from the federal court that Trump has violated the Emoluments Clause, an order that he stop and any other relief that the judge deems “just and proper.”

Frosh filed the lawsuit under authority Maryland’s Democratic-run General Assembly gave to him last year by joint resolution to sue President Trump without the approval of Gov. Larry Hogan, a Republican.

The case is docketed as The District of Columbia and the State of Maryland v. Donald J. Trump, No. 8:17-cv-01596-PJM.

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