Originally Published: June 12, 2018 6:02 a.m.
GREENBELT, Md. — Lawyers for Maryland and the District of Columbia accused President Donald Trump in federal court Monday of “profiting on an unprecedented scale” from foreign government interests using his Washington, D.C., hotel, but a Justice Department lawyer insisted Trump isn’t breaking the law because he provided no favors in return.
At issue is the Constitution’s “emoluments” clause, which bans federal officials from accepting benefits from foreign or state governments without congressional approval. The plaintiffs argue that Trump’s D.C. hotel, which has become a magnet for foreign governments, harms area businesses because of the president’s financial ties to its operations.
“This is the first oral arguments focused on the meaning of the emoluments clause in American judicial history,” said Norman Eisen, chairman of the left-leaning Citizens for Ethics and Responsibility in Washington, which is co-counsel with the two jurisdictions.
U.S. District Judge Peter Messitte peppered lawyers for both sides over their arguments Monday, and in one heated exchange, questioned whether Trump’s government lawyer’s definition of an emolument would mean that such payments were, in essence, bribes.
Justice Department lawyer Brett Shumate told Messitte that his agency’s view of emoluments required that a clear “quid pro quo” — an exchange for an official action — would have to be proven.
“Wouldn’t that be bribery?” Messitte countered. “Another clause in the Constitution makes bribery a basis for impeachment. Are you saying that Congress could consent to bribery?”
Shumate stood his ground, saying “ultimately it’s a question for Congress to decide, whether to consent or not, adding that there needs to be corrupt intent for bribery.
But the judge pressed on, questioning whether “as long as the president takes the money without a corrupt intent, then it’s OK?”
Trump administration lawyers have argued that earnings from such business activity, including hotel room stays, don’t qualify as emoluments. They have argued that under Maryland and D.C.’s interpretation of an emolument, no federal official would even be able to own stock from a foreign company that provides profits or collects royalties.
Lawyers for Maryland and D.C. have maintained that no actual influence is necessary to establish an emoluments clause violation. Steven M. Sullivan, the solicitor general for Maryland, said that Trump’s quid-pro-quo interpretation “requires circumstances that amount to bribery or an employment contract.” Sullivan added: “That definition serves to protect the financial interests of Donald Trump.”
Sullivan said that “Trump has affirmatively encouraged governments to augment his considerable wealth by transacting business with his businesses, including the Trump International Hotel.”
So far in Trump’s presidency, his hotel just steps from the White House has become a popular meeting place for groups tied to foreign governments, including Kuwait, Bahrain, Turkey, Malaysia and Saudi Arabia. The Philippines, which is negotiating a new trade deal with the U.S., is holding its Independence Day celebration there Tuesday.
Last March, Messitte ruled that Maryland and the District could proceed with their lawsuit against Trump’s Washington hotel. But he rejected their effort to target Trump Organization properties outside of the immediate area.
Messitte said he planned to have a decision by the end of July. He said he appreciated the chance to weigh in on uncharted legal territory.
If Messitte allows the case to continue, the plaintiffs say they plan to advance quickly to a “broad” discovery, aiming to collect a trove of tax and financial records, emails and possibly depositions with Trump company executives and even the president’s relatives. Eisen, who was chief ethics counsel in the Obama administration, said “we believe we can move very briskly through discovery” if the judge sides with them.
The case in Messitte’s court is one of three emoluments lawsuits against Trump. Last week, a federal judge in the District heard arguments in a lawsuit pressed by more than 200 Democratic lawmakers. A third case was rejected by a federal judge in New York and is now on appeal.
D.C. Attorney General Karl Racine said last week that a handful of other states have consulted with the plaintiffs about possibly pursuing emoluments cases against other Trump properties and businesses. “We’ve had conversations. They are carefully observing and following our case,” Racine said.