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DOJ opposes review of emoluments claim dismissal

Steve Lash//September 10, 2019

DOJ opposes review of emoluments claim dismissal

By Steve Lash

//September 10, 2019

President Donald Trump opposes review of a three-judge panel’s dismissal of Maryland’s claim that he has committed corruption of constitutional consequence in the handling of his hotel property in Washington.

In papers filed Monday, U.S. Justice Department attorneys urged the full 4th U.S. Circuit Court of Appeals to leave undisturbed the panel’s conclusion that Maryland and its co-plaintiff, the District of Columbia, have at most a “generalized grievance” that the Trump International Hotel is pulling business away from a nearby Maryland convention center, as well as other hotels in the District.

In July, the three judges held that, lacking a more specific grievance, Maryland and the District have no standing to bring their claim that Trump violated the constitutional prohibition on the president’s accepting “emoluments,” or profits, derived from state or foreign governments or from diplomats who visited or stayed in Trump’s hotel.

The panel of 4th Circuit judges rejected Maryland’s and the District’s argument that the president’s interest in the hotel put them at a competitive disadvantage to Trump, an argument the Justice Department lawyers called “idiosyncratic and contrived” in their filing to the full circuit.

“In plaintiffs’ view, the president’s alleged acceptance of emoluments by receiving proceeds from expenditures of foreign or domestic government customers at the Trump Hotel injured plaintiffs by diverting customers from their own two primarily hospitality businesses,” wrote the Justice Department lawyers led by Assistant U.S. Attorney General Joseph H. Hunt, who heads the civil division.

“But the panel correctly noted that this allegation was unduly speculative, because it presumed: (1) that government customers patronize the hotel because the hotel distributes profits to the president, rather than due to other characteristics (including its general association with the president and his family); (2) that such government officials would otherwise use plaintiffs’ properties (rather than any of the myriad others available); and (3) that there are more such government officials than those who instead choose to use plaintiffs’ properties rather than the hotel to avoid benefiting the president,” the Justice Department lawyers added.

Trump’s submission followed last month’s filing by Maryland Attorney General Brian E. Frosh and District of Columbia Attorney General Karl A. Racine seeking full circuit review of the panel’s dismissal.

“It is not only plausible but near certain that some officials are inclined to patronize the hotel to enrich the president and, necessarily less inclined to patronize competitors,” the attorneys general wrote.

“The complaint amply supports that the District and Maryland are suffering the competitive injury” that provides standing, they added.

The full 4th Circuit has not set a date for ruling on the attorneys general’s request for review.

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 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.


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