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DOJ seeks dismissal of Md. emoluments case against Trump

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, and District of Columbia Attorney General Karl Racine, announcing their lawsuit in June. (AP Photo/Alex Brandon)

A federal judge must dismiss Maryland’s lawsuit against citizen Donald Trump for alleged violations of the Constitution’s anti-corruption provision because such a claim can only be brought against a president in his official capacity, the U.S. Justice Department stated in court papers filed Monday.

The department’s filing follows its companion argument that presidents cannot be sued for violations of the Emoluments Clause – which prohibits the chief executive from receiving benefits while in office — because judges lack the authority to tell them to do something, such as divest hotel holdings in Trump’s case.

Maryland Attorney General Brian E. Frosh and District of Columbia Attorney General Karl A. Racine have argued the Constitution enables the president to stand trial for violations of the Emoluments Clause either in an official or private capacity.

Senior U.S. District Judge Peter J. Messitte, who sits in Greenbelt, has yet to rule on the Justice Department’s motions for dismissal.

At a January hearing on the motion to dismiss the official capacity claim, Messitte indicated that presidents could perhaps be sued in their personal capacity under the Emoluments Clause because the alleged benefits would accrue to their personal account, prompting Maryland and Washington to amend their complaint.

In the papers filed Monday, the Justice Department cited the U.S. Supreme Court’s 1971 Bivens decision in arguing federal office holders and their agents can be sued in their personal capacities only in the “very limited circumstances” when they are alleged to have violated a citizen’s rights against unreasonable searches and seizures and against cruel and unusual punishment  —  and only when the party suing seeks money damages.

“Plaintiffs do not seek money damages, nor allege the deprivation of any constitutional right,” the department stated, noting that the plaintiffs in this case seek only a court order from Messitte. “And their claims are a far cry from the narrow circumstances in which the Supreme Court has implied a private cause of action recognized in Bivens. Because Plaintiffs have not identified a source of law that would supply a cause of action against the president in his individual capacity for an alleged violation of the Emoluments Clause, the individual-capacity claims must be dismissed.”

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 hotel.

Trump’s alleged violations specifically harm Maryland and D.C.’s capacity as proprietors of businesses that compete with the president’s businesses, the attorneys general contend in their complaint. The jurisdictions 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 complaint states.

The Justice Department counters 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, the Justice Department suggested perhaps the Gaylord National Resort & Convention Center in Oxon Hill could sue the president for losing business to the Trump International Hotel — if it were permissible to sue the president under the Emoluments Clause.

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

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