The Slatest

Federal Judge Allows Trump Emoluments Case to Go Forward

WASHINGTON, DC - OCTOBER 18: A man holds an American flag outside Trump International Hotel following a protest against the Trump administration's proposed travel ban, October 18, 2017 in Washington, DC. Early Wednesday morning, a federal judge in Maryland granted a motion for a preliminary injunction on the administration's travel ban. This is the Trump administration's third attempt to restrict entry into the United States for citizens from mostly Muslim-majority countries. The Department of Justice said it plans to appeal and the White House issued a statement calling the judge's decision 'dangerously flawed.' (Photo by Drew Angerer/Getty Images)
A man holds an American flag outside Trump International Hotel following a protest against the Trump administration’s proposed travel ban on Oct. 18, in Washington.
Drew Angerer/Getty Images

On Wednesday, U.S. District Judge Peter J. Messitte gave an unexpected green light to the attorneys general of Maryland and the District of Columbia, who had claimed in a lawsuit that payments to properties owned by Donald Trump violate the Constitution’s arcane foreign and domestic Emoluments Clauses. Messitte, who works out of the United States District Court for the District of Maryland, found that the plaintiffs have standing to proceed with their case, at least with respect to the Trump International Hotel in D.C., but not properties in other states.

In a similar case in December, a judge in New York ruled against a different set of plaintiffs, finding they had not shown they were directly harmed by domestic and foreign officials making payments to Trump properties. But in his 47-page ruling, Messitte denied the Justice Department’s motion to dismiss with respect to Trump properties in the District of Columbia but not Maryland. The court made no other decisions beyond finding that the plaintiffs have standing to move forward with their case.

Of particular note, wrote the judge, was the Trump International Hotel D.C., “a five-star, luxury hotel located on Pennsylvania Avenue, N.W., in Washington, near the White House.” He noted that “[d]irectly or indirectly, the President shares in the revenues that the Hotel and its appurtenant restaurant, bar, and event spaces generate.” Messitte noted that “[s]ince the President’s election, a number of foreign governments have patronized or expressed a definite intention to patronize the Hotel, some of which have indicated that they are doing so precisely because of the President’s association with it” and made special mention of the fact that “at least one State—the State of Maine—patronized the Hotel when its Governor, Paul LePage, visited Washington to discuss official business with the Federal Government.”

The court found that D.C. and Maryland could plausibly claim to have been harmed when “Governor Paul LePage of the State of Maine stayed at the Hotel on an official visit to Washington during the spring of 2017, met with the President, and not long after appeared with the President at a news conference at which the President signed an executive order to review national monuments that are part of the National Park Service, which could apply to a park and national monument in Maine, which President Obama had established over LePage’s objections in 2016.” He added, “Leaving aside how Maine’s citizens may have felt about the propriety of their Governor living large at the Hotel while on official business in Washington, the fact that States other than Maryland or the District of Columbia (while, not a State) might patronize the Hotel while on official business in Washington rather clearly suggests that Maryland and the District of Columbia may very well feel themselves obliged, i.e., coerced, to patronize the Hotel in order to help them obtain federal favors.”

While Trump and the DOJ had claimed that Maryland and D.C. could claim no meaningful injury, Messitte writes that the plaintiffs “cite specific instances of foreign governments foregoing reservations at other hotels in the arena and moving them to the President’s Hotel … (noting that both Kuwait and Bahrain moved events from the Four Seasons and Ritz Carlton to the Hotel after the President was elected). Statements from foreign diplomats have confirmed that they will almost certainly be doing likewise.” He also reports that the Plaintiffs further allege that, since the President’s election, the Hotel has raised its prices to premium levels and has increased its profits (alleging that the starting rate for ‘guest rooms’ at the Hotel increased to $500 on most nights, which is hundreds of dollars more than when the Hotel first opened shortly before the presidential election).”

Buried in a footnote, the court also tartly rejects the DOJ’s argument that it’s Congress’ responsibility to resolve the emoluments problem, and not the court’s:

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. 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.

The president will surely appeal this decision, but the plaintiffs are now a step closer to broad discovery surrounding the profoundly opaque Trump business records, finances, and holdings.