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Law professors back Maryland’s emoluments claim

A dozen law professors from outside Maryland are urging the full 4th U.S. Circuit Court of Appeals to revive the state’s lawsuit alleging corruption by President Donald Trump in the handling of his Washington hotel property.

In papers filed Wednesday with the court, the professors seek reversal of a three-judge panel’s unanimous decision that Maryland – and the District of Columbia — have at most a “generalized grievance” that the Trump International Hotel is attracting business away from a Bethesda convention center and other Washington  hotels.

Such a general injury is insufficient to give the state and district standing to bring suit, the 4th Circuit panel ruled in July.

But the professors, who teach constitutional and administrative law and federal court jurisdiction, stated that Maryland and the district do in fact have standing based on the “competitive harm” the Montgomery County Convention Center and D.C. hotels have suffered due to the president’s alleged unconstitutional acceptance of “emoluments,” or profits, from state or foreign dignitaries who visited or stayed in his hotel to curry presidential favor.

“Once a plaintiff establishes an injury based on illegal competition, the causation prong of the constitutional standing test is easily satisfied,” the professors stated in the brief in support of Maryland and the district.

These competitive “injuries are directly traceable to the conduct of petitioner (Trump), who – in alleged violation of the Emoluments Clauses – competed with Maryland and the District of Columbia for government clients,” wrote the professors, represented by attorneys from Brown Goldstein Levy LLP in Baltimore.

“There are a limited number of large event spaces in or near downtown Washington, D.C., and the Trump Hotel’s entry into the market causes Maryland and the District of Columbia to face intensified competition for a limited number of bookings,” the professors added. “In the absence of judicial relief, Maryland and the District of Columbia will continue to face a competitor who enjoys the advantages that come with being the most powerful person in the world.”

The Justice Department and Trump’s personal counsel have a Monday deadline to respond to the request for full 4th Circuit review filed last month by Maryland Attorney General Brian E. Frosh and Karl A. Racine, the district’s attorney general.

The 4th Circuit has not set a date for ruling on the request.

Within hours of the three-judge panel’s decision, Trump sent out a tweet.

“Word just out that I won a big part of the Deep State and Democrat induced Witch Hunt,” Trump tweeted. “Unanimous decision in my favor from the United States Court of Appeals for the 4th Circuit on the ridiculous Emoluments Case. I don’t make money, but lose a fortune for the honor of serving and doing a great job as your President (including accepting Zero salary!).”

The side that loses in the 4th Circuit – either Trump or the attorneys general – is expected to seek review by the U.S. Supreme Court.

The three-judge panel’s July 10 decision was written by Judge Paul V. Niemeyer. He was joined by Judge A. Marvin Quattlebaum Jr. and Senior Judge Dennis W. Shedd.

The panel’s decision overturned a ruling last year by U.S. District Judge Peter J. Messitte in Greenbelt that the president can be sued for alleged corruption under the Constitution’s Emoluments Clauses and that the attorneys general are entitled to pretrial discovery of documents and testimony related to their allegation.

The cases are docketed at the 4th Circuit as In Re Donald J. Trump, President of the United States of America, in his official capacity and District of Columbia and State of Maryland v. Donald J. Trump, in his individual capacity, Nos. 18-2486 and 18-2488.

The 12 law professors on the brief to the full 4th Circuit are Matthew Adler, of Duke University; Zachary D. Clopton, of Northwestern University; Cary Coglianese, of the University of Pennsylvania; Seth Davis and Daniel Farber, of the University of California-Berkeley; Frank Deale, of the City University of New York; Michael C. Dorf, of Cornell University; Daniel Hemel, Aziz Huq and Jonathan S. Masur, of the University of Chicago; Leah Litman, of the University of Michigan; and Brian Wolfman, of Georgetown University.

The professors stated they submitted the brief on their own behalf and not as representatives of their schools.

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