RICHMOND, Va. (CN) — The en banc Fourth Circuit cleared the way Thursday for two states to claim that President Donald Trump rakes in prohibited emoluments from foreign and domestic governments.
“We recognize that the president is no ordinary petitioner, and we accord him great deference as the head of the executive branch. But Congress and the Supreme Court have severely limited our ability to grant the extraordinary relief the president seeks,” U.S. Circuit Judge Diana Gribbon Motz wrote in one of two rulings against Trump published today by the federal appeals court in Richmond, Virginia.
Both cases were decided against Trump in 9-6 votes, with Motz, a Clinton appointee, writing both majority opinions.
Maryland and Washington, D.C., brought one of the suits in June 2017, claiming that foreign dignitaries and other officials who rent rooms at Trump International Hotel mere blocks from the White House are compensating the commander in chief with prohibited emoluments. As laid out in the U.S. Constitution, the president needs the consent of Congress to receive gifts while in office from foreign or state governments or officials.
Trump relinquished daily management of his sprawling business upon taking office, but he did not divest from or place his business interests into a truly blind trust. He has also not sought congressional consent for anything that would qualify as an emolument, such as foreign income from his properties.
Harold Koh, an Obama-era legal adviser for the Department of State, was part of a raft of experts who files amicus briefs in the case. In an interview on the outcome Thursday, he was critical of what Trump had argued.
“The Trump administration tried to argue that if someone makes money from a foreign government in their private capacity while they’re working in government they are not violating the Constitution,” Koh said over the phone call this morning. “This is an extremely narrow approach because it would allow Trump to accept things of value from a foreign government without notification of anybody, especially Congress.”
A Yale Law School professor, Koh said transparency is at the heart of the case.
“This is something every single person in the government does,” he said, “so why should we make a loophole for someone at the top of the government?”
Though U.S. District Judge Peter Messitte advanced the case in 2018, Trump secured a reversal last year from a unanimous three-judge panel of the Fourth Circuit that included one Trump appointee, U.S. Circuit Judge A. Marvin Quattlebaum Jr.
Trump’s personal attorney Jay Sekulow said the U.S. Supreme Court is the next stop.
“We disagree with the decision of the Fourth Circuit,” he said in an email. “This case is another example of presidential harassment.”
Seth Barrett Tillman, a lecturer at Maynooth University Department of Law, was the sole friend-of-the-court on Trump’s side during the appeal.
Reacting to the ruling Thursday, Tillman said Trump has a “good chance of getting cert” for Supreme Court involvement.
“The dissents explained that there was no standing for the appeal, and therefore, it would follow that the trial court also lacked jurisdiction,” he said in an email.
U.S. Circuit Judges Harvie Wilkinson and Paul V. Niemeyer, both Reagan appointees, authored dissenting opinions in the official capacity case. They were joined in the minority by Trump-appointed U.S. Circuit Judge Julius N. Richardson and U.S. Circuit Judge Steven Agee, who was appointed by George W. Bush.
Quattlebaum and another Trump appointee, U.S. Circuit Judge Allison Jones Rushing, joined two dissents to the case involving Maryland and the District of Columbia.
Much like Niemeyer's original opinion, the dissents largely question the ability the court had to even consider the case.
“No federal court can provide a remedy in this case,” wrote U.S. Circuit Judge J. Harvie Wilkinson III, a Reagan appointee. “Because a remedy is unavailable at the end of the road, we are forbidden from starting the journey.”
Motz specifically pushed back on this argument, however, pointing to other parts of the U.S. Constitution, like the president’s age requirement, that set limits on the office and create room for the courts to enforce those limits and the courts to enforce them.
“Those constitutional dictates, like the Emoluments Clauses, do not vest the president with any duty to execute the law,” she wrote. “They are, rather, restraints on the president. Indeed, as the dissenters acknowledge, the Founders themselves recognized that the Foreign Emoluments Clause constitutes a restraint.
“Such restraints are positive law, and of course the president must comply with the law,” she added.
Trump’s predecessor, President Barack Obama, cleared a potential emoluments clause conflict when he sought and received congressional approval to accept the Nobel Peace Prize in 2009.
Back in the ’80s, President Ronald Reagan surrendered his retirement benefits from his term as governor of California to comply with the rules. Even President Jimmy Carter famously put his peanut farm into a trust to make sure the Carter family would not, in his words, “be affected financially from profits or losses of any of the farm operations.”
The companion opinion also released Thursday involved Trump’s attempt to establish immunity between the individual and the office of the president. Motz found the court lacked jurisdiction to address the question, dismissing the appeal.
While Thursday’s ruling should technically allow the states to begin the discovery process, Koh isn’t holding his breath. He said the government’s strategy with all Trump-related disputes seems to prefer U.S. Supreme Court intervention or at least extended delays. Add to this equation the coronavirus outbreak, and quick resolution seems even less likely.
Representatives for the Department of Justice and the White House did not return requests by press time.
Representatives for Maryland and Washington, D.C., are expected to hold a press conference later this afternoon.
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