RICHMOND, Va. (CN) – A divided full Fourth Circuit bench reheard arguments Thursday in a lawsuit accusing President Donald Trump of unconstitutionally profiting from his presidency through his Washington, D.C., hotel.
The en banc Fourth Circuit considered whether to dismiss a case brought by the attorneys general for the District of Columbia and Maryland, who claim Trump has violated the Constitution’s emoluments clauses.
The anti-corruption provisions bar officials from receiving gifts from foreign or state governments while in office without congressional consent.
Maryland Attorney General Brian Frosh and D.C. Attorney General Karl Racine have argued that hotels in their jurisdictions suffer competitive injury because officials hoping to gain the president’s favor are more likely to stay at the Trump International Hotel, just blocks from the White House.
A three-judge panel of the Richmond-based appeals court sided with Trump in July, finding the attorneys general lacked standing to bring the challenge. However, the Fourth Circuit granted their request for an en banc hearing before all 15 judges on the court.
Representing the president, Justice Department lawyer Hashim Mooppan argued Thursday that Frosh and Racine lack authority to sue Trump in his official capacity “without an express authorization by Congress.”
U.S. Circuit Judge J. Harvie Wilkinson III, a Ronald Reagan appointee, sided with Mooppan’s arguments throughout the two-hour hearing.
But Loren AliKhan, solicitor general in Racine’s office, said there are several remedies the court could grant— the most clear-cut of which would be to order Trump to sell the assets in question.
Trump stepped away from the business upon his election and his sons, Donald Trump Jr. and Eric Trump, now run the day-to-day operations. But like Democratic lawmakers who brought a similar case against Trump, the attorneys general say he still benefits financially from the company’s earnings.
Mooppan argued Trump would be unfairly penalized if he was required to divest.
Wilkinson said the case should be dismissed outright due to the lack of precedent to guide the court’s judgment.
“We’re up here making it up. We’re winging it,” the judge said. “There’s no history that authorizes it. There’s no precedent that authorizes it. There’s no right conferred that authorizes it. There’s no remedy set forth that authorizes it. We are winging it.”
However, U.S. Circuit Judge James A. Wynn Jr., a Barack Obama appointee, emphasized the importance of the case.
“It’s not just this president we’re talking about, but about every future president, and what we do today is going to apply across the board,” Wynn said.
Nine of the presiding judges were appointed by Democratic presidents and six were appointed by Republicans.
“This case did not illustrate the federal court at its best,” Seth Barrett Tillman, lecturer at the Maynooth University Department of Law, told Courthouse News.
On several occasions throughout the hearing, judges discussed whether Trump is “above the law,” which struck Tillman as being highly problematic.
He said the central pillar of the case is actually whether the appeals court can step in to dismiss the case and whether the plaintiffs had a right to sue in the first place.
“Contrary to popular belief, this case is not about Trump,” Tillman said. “The real defendant is the federal government, which is being sued under Trump’s name.”
Despite his criticism of the judges, Tillman said attorneys on both sides presented good arguments Thursday.