Last night, the Fourth Circuit stayed Maryland and Washington, D.C.’s Emoluments Clause lawsuit against President Trump in its entirety, while scheduling oral argument in the case to begin on March 19, 2019.

This means that the litigation will be completely paused until the court reaches a decision on the President’s petition, which won’t be for at least three months.

Upon consideration of submissions relative to petitioner’s motion for stay, the court grants the motion and stays the district court proceedings pending proceedings before this court. This case is scheduled for oral argument during the March 2019 term, March 19-21, 2019.

The parties should be prepared to argue not only the procedural issues regarding the mandamus petition but also the underlying issues of (1) whether the two Emoluments Clauses provide plaintiffs with a cause of action to seek injunctive relief and (2) whether the plaintiffs have alleged legally cognizable injuries sufficient to support standing to obtain relief against the President.

The delay is actually a big deal. It means that imminent, intrusive discovery into the President’s finances will be stalled for months, and perhaps never allowed to proceed.

Dozens of outstanding subpoenas authorized by the trial judge—several of which were served on the Trump International Hotel and Trump Organization just two weeks ago—are now frozen. Importantly, the stay has also spared the Solicitor General from having to spend his precious (and perhaps diminishing) capital seeking yet another emergency intervention from the Supreme Court.

Yet aside from its political implications, the case presents novel questions about areas of the Constitution the Supreme Court has never really had a reason to explore.

It all started in June 2017 when the attorneys general of Maryland and D.C. sued Trump, alleging that, through his businesses, he is violating two obscure provisions of the Constitution: The Foreign and Domestic Emoluments Clauses. The Foreign Emoluments Clause forbids federal officials from accepting, without the consent of Congress, any “present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Its domestic counterpart forbids the president specifically from receiving any emolument, other than his official salary, from the federal government or any of the states. (Notably, the Domestic Emoluments Clause does not allow for a Congressional waiver.) Maryland and D.C. aver four distinct types of harm.

  1. Maryland claims that it is losing tax revenue because foreign nationals are staying at the Trump International Hotel in D.C. instead of at “comparable hotels, bars, restaurants and event spaces” in Maryland. The state also asserts an inherent sovereign interest in the President’s compliance with the Emoluments Clauses.
  2. Both D.C. and Maryland argue that the President’s violations of the Domestic Emoluments Clause forces them to either “(1) grant the [Trump] Organization’s requests for concessions, exemptions, waivers, variances, and the like and suffer the consequences, potentially including lost revenue and compromised enforcement of environmental protection, zoning, and land use regulations, or (2) 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.”
  3. D.C. submits that the Walter E. Washington Convention Center, in which the city possesses an ownership interest, is losing money to Trump’s hotel.
  4. D.C. and Maryland assert that their residents are suffering from “a range of market distortions” caused by the President’s supposed violations.

Judge Peter J. Messite, an appointee of President Bill Clinton on the Federal District Court in Greenbelt, MD, dismissed (1), but allowed (2), (3) and (4) to proceed. On December 3, Judge Messitte issued a scheduling order requiring that some preliminary discovery be completed by December 31.

The DOJ, which is representing Trump since he is sued in his official capacity, sought mandamus relief and a stay in the Fourth Circuit. And somehow, despite the prognostications of Laurence Tribe and Norm Eisen, the DOJ got the stay.

A brief parting thought: There is another Emoluments Clause case, filed by Democratic members of Congress, pending in Washington, D.C. The Democrats will take over the House in two weeks. I wonder if they could explicitly vote to deny Trump their consent to accept any foreign emoluments, and if they did, whether that would affect their lawsuit.


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