RICHMOND, Va. — Attorneys for Maryland and the District of Columbia faced sharp questioning from a panel of federal judges Tuesday on their suit alleging President Donald Trump illegally profits from his presidency — and what they propose to do about it.
The judges questioned the foundation of the suit — brought jointly by Mayland and Washington, which allege Trump is violating a constitutional prohibition by doing business with foreign and state governments that patronize the luxury Trump International Hotel in Washington with overnight stays, receptions and conferences. One asked whether Trump’s presidency was, in fact, attracting business to the downtown hotel or if the nation’s polarization was canceling out any benefit.
Trump’s attorneys urged the three-judge panel of the 4th U.S. Circuit Court of Appeals to dismiss the suit, arguing that he is guaranteed “absolute immunity.”
“There is no authority to sue directly the president of the United States in his official capacity,” said Justice Department lawyer Hashim M. Moopann, citing legal precedent during two hours of oral arguments.
After the hearing in a packed downtown courtroom, Maryland Attorney General Brian Frosh called “all this stuff… a dangerous constitutional violation.”
“We have the right to have our interests put first, and it appears he’s not doing that. He’s putting his financial interests first,” Frosh said. “What he’s saying is even if that’s a violation of the Constitution, ‘You can’t stop me. You don’t have standing to bring this suit.’”
The suit was filed in 2017 citing the seldom-invoked emoluments clauses, adopted by the framers of the Constitution to prevent foreign heads of state from exerting influence over the president or other federal officials.
The judges repeatedly questioned the Maryland and Washington attorneys about exactly what relief they were seeking — the plaintiffs have proposed several possible remedies.
One of the judges, A. Marvin Quattlebaum, Jr., is a Trump appointee. The other two were nominated by other Republican presidents.
Judge Dennis Shedd suggested that people protesting Trump and his policies might avoid a hotel that bears the president’s name.
Shedd mused that the hotel could try to ban foreign guests to ensure it wasn’t violating the clause against a president profiting from overseas dignitaries. But that, he said, would swiftly attract a discrimination lawsuit.
Frosh said afterward that it was not necessary for the state to prove that foreign dignitaries were seeking to curry favor with Trump — only that the president received an improper benefit under the Constitution.
The plaintiffs have said that officials from Bahrain, Kuwait and Saudi Arabia have stayed or spent money at the hotel. At least one state — Maine — also patronized the hotel. Trump’s company leases the hotel building — in the Old Post Office in Washington — from the General Services Administration.
In December, the appeals court stayed a lower court’s decision that had allowed the case to proceed. That action halted the suit’s discovery phase, in which dozens of subpoenas were issued to businesses affiliated with Trump and others.
The subpoenas are designed to solicit information to bolster the plaintiffs' case that commercial interests in Maryland and the District — such as competing hotels — could be harmed by any advantage the Trump hotel enjoys through its association with the president.
In seeking the case’s dismissal, Trump's attorneys argued that Frosh and District of Columbia Attorney General Karl A. Racine are too broadly interpreting the Constitution’s emoluments clauses.
The hotel transactions are “ordinary commerce," the president's attorneys maintained Tuesday, and in an earlier brief filed with the court.
"Nearly every President has (or almost certainly has) engaged in commercial transactions that would have violated Plaintiffs’ interpretation of the Emoluments Clauses," Trump's lawyers said in the brief.
They urged the appeals court to reject such a "sweeping" interpretation.
The president was represented Tuesday by two sets of attorneys. Mooppann, a deputy assistant attorney general, addressed issues related to Trump’s official duties, and a private counsel answered questions based on the president as an individual.
Maryland said its focus was solely on Trump’s behavior in his official capacity. Frosh, who was in the courtroom, designated Assistant Attorney General Leah J. Tulin to argue for the office.
University of Richmond law school professor Carl Tobias said in an interview that the case was important because it could help the public "to see whether Trump and his people are in fact profiting from their offices."
The emoluments clauses, Tobias said, have "never been definitively interpreted, so it probably is not clear whether it applies in this case, but that is why we have courts to decide this and related issues.”
In June 2018, U.S. District Judge Peter J. Messitte in Greenbelt rejected challenges to the suit from the president’s attorneys that Frosh and Racine had failed to make an adequate legal claim. Both are Democrats; Trump is a Republican.
The judge's decision relied partly on the meaning of "emoluments."
Maryland has argued for a broad definition covering “profit,” “gain” or “advantage.”
Trump’s attorneys say the clause does not apply to his business. They have cited dictionary definitions of the term as payments made over and above an official’s employment salary.
It is uncertain when the federal appeals court will rule.
The plaintiffs are broadly seeking an injunction prohibiting future violations of the emoluments clause.
“The question is: What relief do you want? This is your lawsuit,” Circuit Judge Paul Niemeyer asked.
The judge said that Loren AliKhan, Washington’s solicitor general, seemed to be “ducking the question.”
AliKhan responded that requiring the president to divest certain personal assets “does seem the appropriate remedy.”
Frosh said afterward that “several things I know will work. One is if he divests himself of properties that bring emoluments his way.”
In running for president, Trump should have expected he might need to address the issue, Frosh said.
“He signed up for it,” the attorney general said. “It’s up to him to figure it out.”
The Trump Organization — which oversees hotels and other business interests — said in response to questions that it recently donated $191,538 to the U.S. Treasury.
The donation “fulfills our pledge to donate profits from foreign government patronage at our hotels and similar businesses during our father’s term in office,” said Eric Trump, an executive with the Trump Organization who is the president’s son.
“Unlike any other luxury hospitality company, we do not market to or solicit foreign government business. In fact, we go to great lengths to discourage foreign government patronage at our properties,” the younger Trump said in a prepared statement.
Frosh said the donation was not a remedy.
“They are trying to haggle over the terms of the Constitution, and the Constitution is not negotiable,” he said.