Dan Rodricks

Dan Rodricks: Looks like Mick ‘the Mouth’ gave Maryland’s lawsuit against Trump a boost

Of all the ways Donald Trump has demeaned the presidency — and there is a long buffet of statements and actions that qualify — the cheesiest and greasiest might have been summarized last Sunday by his acting chief of staff, Mick “The Mouth” Mulvaney. “At the end of the day,” Mick said of his boss, “he still considers himself to be in the hospitality business.”

Had he lived to hear that admission, I could imagine Elijah Cummings’ response: “Exactly! That’s the problem!”


Cummings, the widely respected Baltimore congressman who died Oct. 17, came out early and urgently for Trump to divest himself of his many business interests. In December 2016, as Trump prepared to take office, Cummings held a forum on the obscure emoluments clause of the Constitution, a kind of civics lesson on the nation’s first anti-corruption law.

“The only way [Trump] can properly do this,” Cummings said, “is to fully divest, to avoid even the appearance of a conflict of interest.”


It was not enough for the president-elect to turn his business operations over to his kids, Cummings said, because profits from various deals, some of them involving foreign governments, would continue to flow back to Trump. The solution was complete divestiture and the creation of a blind trust managed by a neutral party. Short of that, Cummings said, Trump would always be suspected of serving his personal interests over the interests of the country.

But, of course, Trump did not take the advice. And so, nearly three years later, there was Mick The Mouth on FOX, talking about Trump’s proposal to host the 2020 G7 summit at his Florida resort, essentially confirming Cummings’ suspicions: “He still considers himself to be in the hospitality business.”

The plan to bring foreign leaders to Trump National Doral grossed everyone out, even many Republicans, so Trump dropped the plan. “He was honestly surprised at the level of pushback,” Mick The Mouth said.

To the extent anything Trump says or does can be considered honest, I’ll go with Mick on that. On Wednesday, a bitter Trump attached an adjective to the emoluments clause, calling it the “phony emoluments clause.”

But there’s nothing phony about it. “The beauty of the emoluments clause,” says Brian Frosh, the Maryland attorney general, “is that it is simple, and flatly prohibitive.”

The emoluments clause states that no office-holder “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.”

Another clause goes a step further to prohibit domestic emoluments. (Merriam-Webster defines emolument as “the returns arising from office or employment usually in the form of compensation or perquisites.”)

Frosh, of course, has taken Trump to court with a lawsuit that claims unprecedented constitutional violations every time foreign and state government visitors pay to stay at the Trump International Hotel in the federally-owned Old Post Office Pavilion in downtown Washington. In 2017, Frosh teamed with Karl Racine, the attorney general for the District of Columbia, to claim that Trump attracts business away from other hotels, in the District and in Maryland, when foreign governments book blocks of rooms at Trump International to curry presidential favor. The state and district lose tax revenues, too.


To Trump supporters, it looked like Frosh, a Democrat, was conducting a partisan attack. But, of course, they say that about everything. They’re saying it about the attorney general’s lawsuit, filed Wednesday, against the apartment management company owned by Trump advisor and son-in-law Jared Kushner.

Believe it or not, some people in this country are still motivated by principles, guided by ethics, informed by facts and devoted to the Constitution. Some people in public life have earned our trust. Brian Frosh is one of them.

But, while something had to be done ― some 70 percent of Americans in a 2016 Bloomberg News poll said that Trump had to choose between being president and being a businessman — I thought Frosh’s emoluments lawsuit was a stretch.

Given that Trump had refused, at least for the duration of his presidency, to give up ownership in dozens of companies in several countries, what was the remedy? Even if a court found him to be in violation of the emoluments clause, what then? And immediate to the lawsuit brought by Maryland and the District were these questions: How would Frosh and Racine demonstrate they had standing? What harm could they prove?

So there was little surprise in July when a federal three-judge panel ruled in Trump’s favor, saying the premise of the Maryland-D.C. lawsuit was abstract and the claims of business loss speculative. The case appeared to be dead.

And yet, two weeks ago, new life! The U.S. Court of Appeals for the 4th Circuit agreed to rehear the matter — this time, en banc, with all 15 judges of the court.


It strikes me that Mick The Mouth’s admission about Trump — not the sensational one about a quid pro quo with Ukraine, but the one about the president being in the hospitality business — is a gift to the citizens of Maryland. It bolsters the state’s case.

“It does,” Frosh said last week. “It shows [the issue] in high relief.” The comment, he added, could not be “more in-your-face” about Trump’s conflicts.

Nobody asked me, but if I’m Frosh, I’m quoting Mick the Mouth when I get before the judges of the 4th Circuit. Oral arguments are scheduled for mid-December in Richmond.