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Trump seeks stay of Md.’s emoluments suit, cites separation of powers

President Donald Trump on Wednesday urged a federal judge to stay, pending appeals, Maryland’s request for financial and other records as part of the state’s lawsuit alleging his corruption in the handling of his hotel property in Washington while chief executive.

In a second round of papers filed in U.S. District Court, Trump’s Justice Department lawyers said a stay of the trial and its discovery proceedings is appropriate due to the potential confidentiality of the presidential communications sought, the judiciary’s possible encroachment on the executive branch and the uncertainty of whether Maryland – and its co-plaintiff, the District of Columbia – have standing to sue the president under the Constitution’s Emoluments Clause.

U.S. District Judge Peter J. Messitte has ruled the president can be sued in his official capacity for his alleged unconstitutional acceptance of “emoluments,” or profits, derived from state or foreign governments or diplomats who visited or stayed at the Trump International Hotel in Washington.

The Justice Department has objected to Messitte’s decision, calling it eminently ripe for appeal as no other federal court has ever ruled on the Emoluments Clause, let alone whether a president can be sued under its foreign or domestic provisions.

“The (district) court has interpreted two constitutional provisions never before interpreted by a federal court, in a 52-page opinion that amply demonstrates the complexity of the interpretive task,” wrote the attorneys from the Justice Department’s civil division.

“It has done so in a case seeking equitable relief solely against a sitting president of the United States and in which plaintiffs seek to subject the president to civil discovery in his official capacity – an extraordinary, if not unprecedented scenario,” the attorneys added. “On its face, such discovery requests would trigger the ‘presumptive’ presidential communications privilege – one that is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.”

The filing came in response to Maryland Attorney General Brian E. Frosh’s request last week that Messitte reject the president’s bid for a stay pending appeal.

Frosh, in his filing, said the seriousness of the alleged presidential corruption “demands prompt resolution.”

“While the public may have an interest in ensuring the president’s attention is devoted to his office, that interest is furthered by bringing the president into timely compliance with the constitutional obligations intended to ensure not only his undivided attention but also his undivided loyalty to that office,” Frosh wrote in the papers filed with District of Columbia Attorney General Karl A. Racine.

‘Flow of funds’

Frosh and Racine, in another court filing, stated their discovery request would likely include documents related to “the flow of funds” from the hotel and its restaurant, BLT Prime, to the Donald J. Trump Revocable Trust, as well as Trump’s receipt of funds from the hotel and restaurant. The discovery request would also likely include documents and depositions related to steps the hotel or restaurant has taken to attract business from foreign and state governments, the attorneys general stated.

Frosh and Racine added they “may also seek limited discovery from President Trump in his official capacity on the subject of his communications with foreign, state, and domestic government officials regarding the hotel and/or restaurant.”

Messitte, who presides at the federal courthouse in Greenbelt, has not set a date for ruling on Trump’s bid for a stay pending appeal.

Appellate courts are often loath to consider appeals prior to a final judgment in lawsuits filed in U.S. District Court. But the Justice Department attorneys stated in their district-court filing Wednesday that a 4th U.S. Circuit Court of Appeals ruling at this stage is appropriate because the emoluments issue is one of first impression, and a decision in Trump’s favor would avoid the separation-of-powers conflict wrought by court-ordered discovery related to a sitting president.

“Ultimately, plaintiffs fail to heed the Supreme Court’s teaching that a ‘stay of either the trial or discovery might be justified’ in cases in which the president is a party, giving ‘(t)he high respect that is owed to the office of the chief executive,'” the Justice Department lawyers wrote, quoting from the justices’ 1997 decision in Bill Clinton v. Paula Jones. “If the (district) court grants the president’s motion for certification for interlocutory appeal, then it should also stay proceedings pending appeal because appellate review very well could avoid the distraction and intrusion on the president’s official duties that continuation of this lawsuit may cause.”

Domestically, 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, office, or title, of any kind whatever, from any king, prince or foreign state” without congressional consent.

Frosh and Racine allege Trump violated the Emoluments Clause by diverting business from other hotels in Maryland and Washington to his own property, a claim Messitte said in July would proceed under the founding document’s anti-corruption provision.

“Where, for example, a president maintains a premier hotel property that generates millions of dollars a year in profits, how likely is it that he will not be swayed, whether consciously or subconsciously, in any or all of his dealings with foreign or domestic governments that might choose to spend large sums of money at that hotel property,” wrote Messitte. “How, indeed, could it ever be proven, in a given case, that he had actually been influenced by the payments? The framers of the [foreign and domestic Emoluments] Clauses made it simple. Ban the offerings altogether (unless, in the foreign context at least, Congress sees fit to approve them).”

Frosh and Racine, both Democrats, contend Trump has unconstitutionally profited from leases of Trump properties by foreign-government-owned entities; the use by foreign governments and diplomats of accommodations, restaurant purchases and venues for events at Trump International Hotel and his other facilities; the purchase and ownership of condominiums in Trump properties by foreign governments; and the stay by at least one governor – Maine’s Paul LePage – and his entourage at the Washington hotel, as well as the continuation of the U.S. General Services Administration’s lease at that property.

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

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 court deems “just and proper.”

Trump, a Republican, has denied the allegations.

Frosh filed the lawsuit under authority Maryland’s Democratic-led General Assembly gave to him last year by joint resolution to sue 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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