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Trump wins emoluments case in 4th Circuit Court of Appeals

Trump wins emoluments case in 4th Circuit Court of Appeals

Big victory, but other cases are pending in other circuits, so stay tuned.

President Trump prevailed Wednesday morning in a lawsuit claiming that profits from his businesses violate the Emoluments Clauses of the Constitution.

The case was brought by the attorneys general of Maryland and Washington D.C., who said that Trump properties, notably the Trump International Hotel in D.C., were siphoning business away from state-owned convention centers.

The Foreign Emoluments Clause, directly relevant in this case, provides:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, 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.

The Domestic Emoluments Clause, less relevant in this case, provides:

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

What these clauses mean is the subject of debate, but before reaching the merits, a court needs to decide whether the plaintiffs are entitled (i.e., have “standing”) to sue to enforce the Emoluments Clauses. The U.S. Court of Appeals for the Fourth Circuit found that State of Maryland and the District of Columbia had no standing. The Opinions are here and here. (One addresses claims against President Trump in his official capacity, the other addresses claims against him individually.)

Maryland and D.C.’s argument was that foreign dignitaries were likely patronizing the Trump International Hotel in the hopes of currying favor with the President, giving the hotel a competitive advantage over similar venues—which was tantamount to profiting off the the presidency.

The panel concluded that this theory of harm was too speculative and attenuated to confer standing on Maryland and D.C. The panel wrote:

To begin, the District and Maryland’s theory of proprietary harm hinges on the conclusion that government customers are patronizing the Hotel because the Hotel distributes profits or dividends to the President, rather than due to any of the Hotel’s other characteristics. Such a conclusion, however, requires speculation into the subjective motives of independent actors who are not before the court, undermining a finding of causation.

Even if government officials were patronizing the Hotel to curry the President’s favor, there is no reason to conclude that they would cease doing so were the President enjoined from receiving income from the Hotel. After all, the Hotel would still be publicly associated with the President, would still bear his name, and would still financially benefit members of his family. In short, the link between government officials’ patronage of the Hotel and the Hotel’s payment of profits or dividends to the President himself is simply too attenuated.

No one thinks it is desirable for government officials to profit from their positions, but the theory of standing in this case deserved to be rejected. Indeed, the theory was so novel and weak as to make one think that the true purpose of the lawsuit was, in fact, discovery into the president’s finances.

As Legal Insurrection reported in December when this same panel halted proceedings in the case:

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.

The decision is certainly a victory for President Trump, who is tweeting about it:

Trump’s attorney declares it a complete victory:

But the President shouldn’t feel too relieved yet. He drew an unusually favorable panel: Paul Niemeyer, Dennis Shedd and A. Marvin Quattlebaum, three of the Fourth Circuit’s most conservative judges.

Because the Fourth Circuit has a 9 Democratic and 6 Republican appointees, the plaintiffs will probably seek en banc rehearing, and there is at very least a reasonable chance they will get it.

But for now, the Fourth Circuit has closed one avenue to discovery into the President’s finances. Of course, other avenues exist.

A similar case, brought by individual members of Congress, is currently pending before the D.C. Circuit. Yet another case, brought by a private watchdog group, is currently on appeal to the Second Circuit.


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ugottabekiddinme | July 10, 2019 at 4:01 pm

“Maryland and D.C.’s argument was that some people were likely patronizing the Trump International Hotel in the hopes of currying favor with the President, giving the hotel a competitive advantage over similar venues—which was tantamount to profiting off the the presidency.”

Yeah, back in 70s, I was worried about this very thing, fearful that all those folks were buying peanuts just so as to curry favor with Jimmy Carter.


I wonder if Hunter Biden’s Chinese and Ukrainian partners gave any thought to influencing papa Creepy Joe in protecting them? Never crossed their minds.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected,
how can this be applicable if potus (so far) donating all salary to charities?

    Milhouse in reply to dmacleo. | July 10, 2019 at 4:27 pm

    What he does with his compensation is his business. The constitution requires only that he be paid it, and he is. George Washington wanted to work for free, and Congress refused to let him, lest it set a precedent and make the presidency untenable for other people who couldn’t afford to work for free.

    artichoke in reply to dmacleo. | July 10, 2019 at 5:19 pm

    He receives it and every quarter he re-donates it to some part of the government he deems worthy.

This is one victory. But the supply of fascist/communist #Resistance Federal judges is pretty deep, so chances are Democrats are bound to get lucky elsewhere. This is what happens when judges decide they are accountable-to-no-one tyrants, and when Republicans cowardly rubber-stamp Democrat nominees who think like this.

No Republican should ever vote for a Democrat appointee to the Federal bench. Period.

No direct payment was made to Trump. With all of the operating expenses, the “profit” is a small percentage. How many Democrats are employees and got part of the “payoff” for working (gasp … working)? The Clintons were only one degree of separation away from the money Bill got for his talks…. including Russia. Now… who was be colluding with there… a bird or two from the GRU?

No one thinks it is desirable for government officials to profit from their positions

It may not be desirable, but it’s also not always bad enough to justify doing anything about it. There are always perquisites of any office. For instance most private employees who travel for business are allowed to keep the miles they earn. I don’t know what the public service policy is on this, but it wouldn’t shock me to learn that it was the same.

In the case of the Foreign Emoluments clause, the founders’ concern was not that officers of the USA should not benefit from their positions; it was that they should not be bribed by foreign governments. But they were only concerned about officers of the USA, which is a term that throughout the constitution means people appointed by the president with the senate’s consent. They were not concerned about elected officials, and did not include them in the clause.

George Washington openly accepted gifts from foreign governments, kept them for himself, and did not seek Congress’s permission — and not one congressman protested. That proves that nobody in that generation, which included the drafters and ratifiers of that clause, understood it to cover the president.

    rdm in reply to Milhouse. | July 10, 2019 at 6:39 pm

    If anyone believes that senators and congressmen aren’t profiting from their position they are smoking something potent.

    Richard G. in reply to Milhouse. | July 11, 2019 at 1:34 pm

    Want to see a real Foreign Emoluments clause violation?

    “Former State Department employee Candace Claiborne sentenced to 40 months in federal prison for passing internal state department documents to Chinese agents in exchange for tens of thousands of dollars in cash and gifts.”

    Arrested March 28th, 2017.

    Kudos, Milhouse.

Why it’s almost as if these people are only doing this to target one single person…otherwise they would have been going after the Clinton Foundation for years!!

“and he shall not receive within that Period any other Emolument from the United States, or any of them.”

It also prevented individual states from bribing the POTUS. The northern states were more populous and far wealthier than the southern states.

I was going to say that it’s only a small victory because the whole suit was ridiculous.

But then I thought of how much trouble Mandelblit has ginned up for Netanyahu over accepting courtesy stuff like free cigars.

If this goes forward, then no government official can ever have any outside business interests, lest that business be patronized by a foreign official and thereby (according to this wild theory) enrich the official and thus run afoul of the emoluments clause. That’s obviously absurd. If the Trump hotel has a standard room rate and charges it to everyone, regardless of whether the customer is a foreign government or not, I don’t see how a rational person (in other words, someone who is not a Democrat) could conclude that this in any way violates the emoluments clause.

And that said, it would seem like an above market rate offer to hire Bill Clinton while Hillary was SecState is a more obvious bribe than Trump’s business empire offering hotel rooms. ????

    legalbeagle in reply to OnPoint. | July 10, 2019 at 7:01 pm

    or own stocks in Public Corporations. What out Judges. Your 401K may be a Constitutional violation.

      OnPoint in reply to legalbeagle. | July 10, 2019 at 7:49 pm

      @legalbeagle, Exactly. Effectively, this absurd interpretation would cut off every official from all commerce. The whole idea of citizen statesmen (yes, I know that’s absurd in the age of perpetual congress critters without any term limits) would be utterly impossible because one would have to make a career of public service simply to survive.

    BobM in reply to OnPoint. | July 10, 2019 at 11:54 pm

    Exactly. To highlight how idiotic this interpretation of the clause is in practice, let’s take a historical for instance. Let’s assume Harry Truman’s haberdashery shop never went under and Mr. Truman had a manager run it for him while he went into public office. So as VP and as POTUS he was still earning income from the shop. If the Russian Premier visited the USA for a summit, and during his trip bought a hat at Harry’s shop, by this theory Harry just committed a crime.

    Basically, this legal theory makes it legally impermissible for ANY official the clause applies to to earn any income other than their government salary. Hat shop, law firm, investment bank, hotel, any would be illegal. On that basis, I doubt more than a handful of Congress critters would escape removal from office.

This is open lawfare. A new civil war has broken out. The main tool of the left are District Judges embedded by Obama. But there is an armed wing – Antifa.

    countrylaw in reply to dystopia. | July 10, 2019 at 6:57 pm

    The Supreme Court has original jurisdiction over lawsuits between the States. It is high time that Attorneys General in Republican States directly litigate with Democratic Attorney’s General.

    Republican Attorneys General need to join with the United States each time a Democrat Attorney General pulls one of these tricks. That way the case goes directly to SCOTUS and bypasses the Obama District Court embeds.

    It is time to make Roberts act like a Chief Justice and not the Chief Dissembler.

I have noticed lately that federal judges are uniquely equipped to determine the actual motive of politicians. As Roberts has demonstrated. Yet they seem unable to determine that this case isn’t about emoulments, but to harass and fish for information.

The worst circuits are 4 and 9. Trump won this in the 4th Circuit. Impressive to win ANYTHING there.

So their theory was that Obama should have been impeached because foreign officials might have bought his book on Amazon, from which he would receive a royalty?