President Donald Trump will appeal to the U.S. Supreme Court a lower appellate court’s revival of Maryland’s claim that he has committed corruption of constitutional consequence in the handling of his Washington hotel.
In papers filed Friday, Trump’s attorneys asked the 4th U.S. Circuit Court of Appeals to stay its decision permitting Maryland’s lawsuit to proceed pending the justices’ ruling on the president’s coming request for the justices’ review. Maryland Attorney General Brian E. Frosh said Tuesday that he and District of Columbia Attorney General Karl A. Racine, who has joined Frosh in the lawsuit against Trump, will oppose the president’s request for a stay in a filing due Wednesday.
If granted, the stay would forestall the attorneys general’s pretrial request for guest lists and related documents pertaining to the Trump International Hotel. The 4th Circuit has not set a day for ruling on Trump’s stay request.
Frosh and Racine, both Democrats, allege Trump, a Republican, 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 hotel. The full 4th Circuit, in allowing the lawsuit to proceed, stated last month that the Constitution’s emoluments clause imposes a “restraint” on presidents, which they are bound to follow.
The 4th Circuit’s 9-6 decision displaced a ruling by a three-judge panel of the court last July that dismissed the lawsuit. The panel said 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.
The panel’s 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,” Judge Diana Gribbon Motz wrote for the majority. “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.”
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.
Judge J. Harvie Wilkinson III led the dissenting judges in decrying the decision as a judicial power grab from Congress, which they said has the sole authority to enforce the emoluments clause. 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.