RICHMOND, Va. (CN) — Attorneys general for Maryland and the District of Columbia have asked the Fourth Circuit for guidance on the outcome of district court opinions in since-mooted emoluments clause cases against former President Donald Trump.
The letter sent this week to the appeals court’s clerk is drawing criticism from court watchers who say the effort seeks only to allow the Democratic AGs to save face after having little to show following nearly four years of headline-making litigation.
The emoluments fight started shortly after Trump took office in 2017. Maryland Attorney General Brian Frosh and D.C. Attorney General Karl Racine filed suits against Trump both in his capacity as president and as an individual citizen in federal court, alleging money his private businesses took while he was in office not only disadvantages local competitors, but also made room for undue influence on the highest office in the country.
The officials hoped to enforce the U.S. Constitution’s emoluments clause, which bars presidents from receiving gifts from foreign or state governments while in office without congressional consent, against Trump, a core issue of the dispute which had yet to be decided.
Trump and the Justice Department argued against both the standing of the plaintiffs and the merits of their claims in both disputes, but U.S District Judge Peter Messitte sided with the AGs, giving first-of-its-kind teeth to the theory that a sitting president can be sued over alleged emoluments violations.
On appeal, the cases went before the Fourth Circuit, in both three-judge panel hearings and en banc rehearings. A mix of rulings from the Richmond-based appeals court then landed the cases before the U.S. Supreme Court.
While the high court initially agreed to review the matter, it dismissed the official-capacity claim as moot after President Joe Biden took office.
In their letter this week, Frosh and Racine agreed the dismissal of the dispute related to Trump’s official capacity as president vacated the appeals court decisions on that issue as moot, citing the 1950 Supreme Court decision in U.S. v. Munsingwear.
But they pointed to a pair of Fourth Circuit orders this month to argue the issue of Trump’s alleged emoluments violations in his individual capacity has not been clarified, creating a tension that must be resolved.
The first order, dated March 9, directed the district court to dismiss the official-capacity case as moot after the Supreme Court’s decision. The second, issued just minutes later, said the Fourth Circuit remanded the dispute to the district court as moot and vacated the three trial court rulings.
“The second order did not arise from an appeal that implicated either of the district court opinions whose vacatur it directed—both of which concerned only the official-capacity claim,” the attorneys general wrote in their Wednesday letter. “Accordingly, the second order appears to be inconsistent with the first order in its interpretation of the Supreme Court’s directive.”
Further complicating the issue, Maryland and D.C. had actually sought to dismiss the individual-capacity claims. While Trump’s lawyers originally agreed, they also wanted the case thrown out entirely with prejudice, leaving the unanswered merit questions resolved in the former president’s favor.
Trump’s attorney William S. Consovoy with the Arlington, Virginia-based firm Consovoy McCarthy responded to the AGs’ letter Thursday, arguing Frosh and Racine had missed the mark.
While the attorneys general may have hoped for confusion on the issue, Consovoy argued Munsingwear precedent moots every decision in the dispute from the en banc Fourth Circuit down to the district court.
In Munsingwear, the justices established the form of vacatur in which a separation of powers dispute that has become moot without an opinion from the Supreme Court is sent back to the lower court with an order to dismiss.
“The Supreme Court has made clear that vacatur of appellate judgments in such cases ‘of course’ requires ’the consequential vacation of the underlying judgment of the district court,’” Consovoy wrote in his response letter. “Because the district court’s prior decisions addressed these points and were part of the individual-capacity appeal, the court plainly had authority to dispose of them.”
He added, “But ultimately this does not matter, since vacatur of the proceedings below is the proper disposition of this case under Munsingwear and its progeny.”
Seth Barrett Tillman, a U.S. constitutional law professor at Maynooth University, has long criticized the AGs’ emoluments disputes for several reasons, filing a number of amici briefs as the disputes worked their way through the process, but he was particularly perturbed at Frosh and Racine’s latest steps.
“They’re hopping mad because the district court’s decision was set aside,” he said in a phone interview, noting without the preservation of Judge Messitte’s opinions the attorneys general end up empty-handed after four years of high-profile and time-consuming litigation.
“They want to preserve these cases because they think they’re valuable as case law, can help write legislation, and justify four years of litigation they spent taxpayers’ money on,” Tillman added.
The professor pointed to a February op-ed in Politico written by Frosh, Racine and Norman Eisen, former President Obama’s ethics czar, which lays out a plan for future laws addressing emoluments concerns raised by Trump’s presidency.
“Trump’s departure from the White House may have effectively terminated the case against him, but we still secured a significant victory: Judge Peter J. Messitte of the Maryland federal district court ruled in 2018, the year after we filed suit, that the Constitution forbids the president from receiving anything of value from a foreign or domestic government,” they wrote.
Frosh and Racine’s position may not be unreasonable. Sans the Messitte decisions, there is little emoluments precedent to work from if and when legislators or attorneys want to challenge future presidents under the rarely utilized provision.
“There’s a good argument to apply Munsingwear, whether doctrinally it should have been applied is up for dispute,” Tillman said.
But he still questioned the use of a letter to a clerk and not a proper legal filing.
“What is the clerk supposed to do? If you or I tried to pull this with the Fourth Circuit, the letter would get thrown in the trash,” he said. “Lawyers are not supposed to practice law through letters. If they don’t like an order, they can file for reconsideration like anyone else in the world.”
In an email, a spokesperson for Frosh’s office said there was nothing improper about sending a letter as opposed to filing a motion. They said the details in the letter speak for themselves.
There was no signal on how the Fourth Circuit judges or its clerk would respond to the request.
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