A federal judge ruled that the District of Columbia and Maryland may proceed with an unprecedented lawsuit against President Donald Trump alleging that Trump’s business dealings have violated the Constitution’s ban on receiving “emoluments” or improper payments from individual states and foreign governments.
The ruling, by U.S. District Judge Peter Messitte, marks the first time that a lawsuit of this kind has cleared the initial legal hurdle – a finding that the plaintiffs have legal standing to sue President Trump in the first place.
In this case, Messitte found that both District of Columbia Attorney General Karl Racine and Maryland Attorney General Brian Frosh, both Democrats, have legal standing to sue Trump over the business of the Trump International Hotel in downtown Washington.
As part of that ruling, Messitte said he rejected an argument previously made by critics of the lawsuit – that, under the Constitution, only Congress may decide if the president has violated this clause.
“In absence of Congressional approval, this Court holds that it may review the actions of the President to determine if they comply with the law,” Messitte wrote.
Messitte’s ruling is likely to be appealed. If it stands, it could allow Racine and Frosh to seek internal documents from the Trump Organization, to determine how much money the hotel has taken in from both foreign and state governments.
Messitte’s ruling narrowed the scope of the lawsuit to just the hotel, which has hosted events from several foreign embassies. He said that other Trump businesses – including the Mar-a-Lago Club in Florida – were too far away to have a material impact on either the District of Columbia or Maryland.
The Department of Justice – which is representing the president in this case – did not immediately respond to requests for comment.
Although Trump said he gave up day-to-day management of his business while he is in the White House, he still owns his businesses, and can withdraw money from them at any time.
A statement from the Trump Organization said, “While the Trump Organization is not a party to the lawsuit, the Court’s decision today does significantly narrow the scope of the case. The Court has yet to rule on several additional arguments, which we believe should result in a complete dismissal.”
Racine and Frosh celebrated the ruling with posts on Twitter: “We won the first round! Our case moves forward!” Frosh wrote in a tweet.
This case was filed last year, one of a raft of suits that were filed in the months after Trump’s inauguration – all of them alleging that he was violating the Constitution’s “emoluments clauses.”
Those clauses were dusty corners of the Constitution, rarely tested in court during 240-plus years of American history.
One bars federal officers from taking presents or “emoluments” from foreign governments. The other prohibits presidents from taking side payments from individual states.
In these lawsuits, the plaintiffs allege that Trump was violating one or both of these bans, because foreign and state governments have spent money to rent hotel rooms or banquet halls at his businesses.
Trump’s attorneys have said that the term “emolument” was never meant to cover transactions like this: not outright gifts to the president, but purchases made at fair-market value.
The first step in all these cases has been an argument over what lawyers call “standing” – in essence, does the plaintiff have a right to sue in the first place?
In December, for instance, a federal judge threw out one of the emoluments-clause lawsuits, which had been brought by the nonprofit watchdog group Citizens for Responsibility and Ethics in Washington.
Judge George Daniels ruled that the watchdog group lacked standing. He believed that the Constitution gave Congress – and only Congress – the right to enforce these rules.
“As the only political branch with the power to consent to violations of the Foreign Emoluments Clause, Congress is the appropriate body to determine whether, and to what extent, Defendant’s conduct unlawfully infringes on that power,” Daniels wrote in his ruling.
This case, involving the two attorneys general, had a hearing earlier this year in front of Messitte at a federal court in Greenbelt, Marland.
In that hearing, the Justice Department — arguing on Trump’s behalf – made a similar argument in an effort to throw out the attorney generals’ suit. Brett Shumate, a Justice Department lawyer, said that states like Maryland had no right to sue Trump over these clauses.
“The states are not roving constitutional watchdogs,” Shumate said. He continued: “This is ultimately a political dispute. It should be left to the political process.”
In his ruling on Wednesday, Messitte rejected that idea.
“The thrust of the President’s argument that only Congress can act is particularly concerning. Suppose a majority (simple? two-thirds?) of Congress (the House? the Senate? both?) is controlled by one party-that of the President,” he wrote in a footnote. “And suppose the Congress never undertakes to approve or disapprove the President’s receipt of such ’emoluments.'”
“The President could continue to receive unlimited “emoluments” from foreign and state governments without the least oversight and with absolute impunity,” Messitte wrote.
(c) 2018, The Washington Post · David A. Fahrenthold, Jonathan O’Connell