Frosh joins D.C. in suing Trump over foreign payments. (WJZ)
WASHINGTON — Alleging that President Donald J. Trump has engaged in "unprecedented constitutional violations," the attorneys general of Maryland and the District of Columbia sued the president Monday over payments his real estate empire has received from foreign governments since he took office.
Attorneys General Brian E. Frosh of Maryland and Karl A. Racine of Washington — both Democrats — filed the lawsuit in U.S. District Court in Maryland, the first time a state government has sued Trump claiming those payments violate the Emoluments Clause of the Constitution.
Frosh argues in part that Maryland is losing tax revenue because hotels in the state must compete with the Trump International Hotel on Pennsylvania Avenue in Washington — a property the suit alleges has drawn increased business from foreign governments because its owner works down the road in the Oval Office.
"It's unprecedented that the American people must question day after day whether decisions are made and actions are taken to benefit the United States or to benefit Donald Trump," Frosh said at a news conference. "The president's conflicts of interest threaten our country."
Frosh described the Emoluments Clause as a firewall.
"One thing we know about President Trump is that he understands the value of walls," Frosh said. "This is one he can't climb over and he can't dig underneath."
The White House cast the litigation as a political stunt, and said the president's business interests do not violate the Constitution.
"It's not hard to conclude that partisan politics may be one of the motivations behind the suit," White House spokesman Sean Spicer said. "I think we'll continue to move to dismiss this case in the normal course of business."
A spokeswoman for the Republican Party described the lawsuit as "absurd," and said it represented "the kind of partisan grandstanding voters across the country have come to despise."
The lawsuit is similar to one filed in January by the watchdog group Citizens for Responsibility and Ethics in Washington. Frosh and Racine listed attorneys for CREW as co-counsel in the suit filed Monday.
Frosh said attorneys would attempt to obtain copies of Trump's tax returns as part of the lawsuit. The president has broken with decades of tradition — but violated no rules or laws —in refusing to make his returns public.
The lawsuit comes months after the Democratic-led General Assembly gave Frosh broad authority to sue the federal government. The resolution did not require Gov. Larry Hogan's signature.
Hogan, a Republican, declined to sign a related measure providing funding and staff for Frosh's efforts. That meant it became law without his signature.
"Per the resolution passed by the General Assembly, the governor's office no longer has a role in this process," Hogan spokeswoman Amelia Chasse said in a statement.
Trump said in January he would turn over the day-to-day operation of his real estate business to his family and place its assets in a trust. But he continues to have ownership of the businesses, and may continue to receive payments from the trust at his discretion.
The Trump organization has pledged to donate profits from foreign leaders to the Treasury.
Frosh and Racine allege Trump has received millions of dollars in payments, and violated the Constitution by allowing foreign governments to buy condominiums and rent hotel rooms in properties owned by Trump companies, including the hotel in Washington.
The framers of the Constitution, aiming to limit the potential for corrupting influences, included language declaring that "no person holding any office of profit or trust under [the United States], shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state."
They also wrote that presidents will receive payment for the job, and may not receive "any other emolument from the United States, or any of them."
Frosh and Racine allege that "President Trump's continued ownership interest in a global business empire, which renders him deeply enmeshed with a legion of foreign and domestic government actors, violates the Constitution and calls into question the rule of law and the integrity of the country's political system."
One obstacle they face: The challenge of establishing standing — or proving that they have been harmed by the defendant's actions.
In the CREW lawsuit, the Justice Department argued Friday that the group was not harmed and therefore was not in a position to sue.
The Justice Department also said the group had defined emoluments too broadly, and that the concept applies only to payments given to the president in his official capacity.
Jonathan Turley, a law professor at George Washington University, said proving standing is "the greatest challenge" confronting the attorneys general.
"Trump laid the foundation for these challenges by declining to simply divest his interest in his holdings," he said. "However, there is no clear precedent on the meaning and scope of emoluments."
Turley said the odds are likely against the case, but "the merits of the constitutional claim have good-faith arguments on both sides."
The attorneys general allege that Trump's actions have harmed Maryland's "sovereign interests."
Reaching back to the nation's founding, they said the Emoluments Clause was a "material inducement" — a provision to entice states to join the union — because many, including Maryland, had similar prohibitions in their own constitutions.
The attorneys general also said states that provide zoning variances or tax breaks to a Trump business project could win favor at the White House, harming those that do not.
"The defendant's acceptance or receipt of presents and emoluments in violation of the Constitution presents the District and Maryland with an intolerable dilemma: Either grant the organization's requests for concessions, exemptions, waivers, variances, and the like ... or deny such requests and be placed at a disadvantage vis-à-vis states and other government entities that have granted or will agree to such concessions," they wrote.
They do not cite an example of such a request from the Trump organization in Maryland.
The attorneys general claim that MGM National Harbor in Prince George's County and the Bethesda North Marriott Hotel & Conference Center in Montgomery County have been put at a competitive disadvantage by the Trump International Hotel.
Norman Eisen, co-founder and chairman of CREW and former special counsel to President Barack Obama for ethics and government reform, described the Trump hotel as a "giant emoluments whirlpool sucking business form all over the greater District area."
While Frosh and Racine note several instances of foreign diplomats staying at the Trump hotel — and that the Kuwaiti embassy appears to have moved an event to the hotel from another Washington venue — it does not cite an example of a guest pulling out of a Maryland hotel to stay at the Trump property.
Pressed by reporters about how Maryland had been harmed by Trump's actions, Frosh said at one point: "We don't have to show harm. The fact that he is taking payments from foreign governments, from states ... is an emolument."
Eisen said states are uniquely positioned to have standing in an Emoluments Clause lawsuit.
"If the Constitution is being violated, that's an injury," he said. "These governmental entities are the original contractors in that compact. They're entitled to say, 'the Constitution is being violated,' [and] that's a harm by itself. You need nothing more."