Saying no one is above the law, a bitterly divided federal appeals court Thursday revived Maryland’s claim that President Donald Trump has committed corruption of constitutional consequence in the handling of his property in Washington.
In a 9-6 decision, the 4th U.S. Circuit Court of Appeals sent back for trial Maryland’s and the District of Columbia’s allegation that Trump violated the Constitution’s prohibition on presidents accepting “emoluments,” or profits, by making money from foreign leaders and state officials who visited or stayed at the Trump International Hotel. The 4th Circuit noted that Constitution’s emoluments clause imposes a “restraint” on presidents, which they are bound to follow.
“Such restraints are positive law, and of course the president must comply with the law,” Judge Diana Gribbon Motz wrote for the majority. “The duty to do so, however, is not a uniquely official executive duty of the president, for in the United States, every person – even the president – has a duty to obey the law.”
Dissenting judges decried the decision as a judicial power grab from Congress, which has the sole authority to enforce the emoluments clause.
Trump may appeal the decision to the U.S. Supreme Court.
The full 4th Circuit’s decision displaced a ruling by a three-judge panel of the court last July that dismissed the lawsuit, saying Maryland and the district’s merely “generalized grievance” that the hotel was pulling business away from a nearby Maryland conference center and other hotels in Washington was insufficient to bring the constitutional claim.
That ruling had overturned U.S. District Judge Peter J. Messitte’s decision that the lawsuit could proceed, with Maryland and the District seeking documents and pretrial testimony regarding Trump’s Washington hotel.
In returning the case to the district court in Greenbelt, the 4th Circuit rejected Trump’s argument through U.S. Justice Department lawyers that permitting pretrial examination of documents would impede executive branch operations.
“(T)he discovery here – business records as to hotel stays and restaurant expenses, sought from private third parties and low-level government employees – implicates no executive power,” Motz wrote. “The president has not explained, nor do we see, how requests pertaining to spending at a private restaurant and hotel threaten any executive branch prerogative.”
Maryland Attorney General Brian E. Frosh and his District counterpart, both Democrats, spearheaded the emoluments lawsuit against Trump, a Republican.
Frosh hailed the 4th Circuit’s decision.
“Donald Trump is not above the law,” he said. “He must abide by the law.”
Karl A. Racine, the District’s attorney general, added that the litigation is motivated not by politics but “the rule of law.”
In its decision, the 4th Circuit also cited the general practice of appellate courts declining to hear appeals before a final judgment has been reached in the trial court.
This general prohibition on “interlocutory” appeals is especially applicable to this novel emoluments challenge, in which a trial is needed to resolve in the first instance the parties differing definitions of presidential profiteering, the 4th Circuit said.
Trump, for example, defines an emolument as an illicit payment to the president for services rendered whereas Maryland and the District say the clause is broader, prohibiting presidents from profiting from foreign and domestic dignitaries through the businesses the president owns.
“Before this litigation commenced, no court had ruled on this (emoluments) question, but respondents (Maryland and the District) point us to several executive and comptroller general legal opinions that have arguably interpreted the term consistently with their definition, not the president’s,” Motz wrote. “Given this history, we can hardly conclude that the president’s preferred definition of this obscure word is clearly and indisputably the correct one.”
Motz was joined in the opinion by Chief Judge Roger L. Gregory and Judges Robert B. King, Barbara Milano Keenan, James A. Wynn Jr, Albert Diaz, Henry F. Floyd, Stephanie D. Thacker and Pamela A. Harris.
In a vehement dissent, Judge J. Harvie Wilkinson III said the 4th Circuit has “sorely overstepped its proper bounds” by endorsing a private and flimsy partisan claim of a constitutional violation that can only be enforced by Congress.
“The majority is using a wholly novel and nakedly political cause of action to pave the path for a litigative assault upon this and future presidents and for an ascendant judicial supervisory role over presidential action,” Wilkinson wrote.
“It opens the door to litigation as a tool of harassment of a coordinate branch with notions of competitor standing so wide and injury-in-fact so loose that litigants can virtually haul the president into court at their pleasure,” Wilkinson added. “We are reaching the point of solving political differences increasingly through litigation rather than through legislation and elections. This is a profoundly anti-democratic development pressed in a suit whose wrongfulness and transparently political character will diminish the respect to which courts are entitled when they carry out the essential functions that our cherished Constitution has assigned them.”
Wilkinson was joined in the dissent by Judges Paul V. Niemeyer, G. Steven Agee, Julius N. Richardson, A. Marvin Quattlebaum Jr. and Allison Jones Rushing.
Frosh and Racine ultimately seek a declaratory judgment from Messitte, the district judge, that Trump has violated the emoluments clause, an order that he stop and any other relief that Messitte deems “just and proper.”
The 4th Circuit rendered its published decision in In Re: Donald J. Trump, President of the United States of America, in his official capacity and in his personal capacity, No. 18-2486.