Full Fourth Circuit Set to Rehear Emoluments Fight

The Trump International Hotel in Washington. (AP Photo/Alex Brandon)

RICHMOND, Va. (CN) – Two of four lawsuits claiming President Donald Trump has violated anti-corruption provisions in the U.S. Constitution return to the Fourth Circuit for a full en banc hearing Thursday.

At the heart of the dispute are the so-called emoluments clauses, which bar presidents from receiving gifts from foreign or state governments while in office without congressional consent.

A three-judge panel of the Richmond-based appeals court sided with the president in July, finding attorneys general for Maryland and the District of Columbia lacked standing to bring the pair of suits. While they failed to convince the panel that foreign and domestic officials are visiting Trump’s hotel in the nation’s capital in hopes of gaining favor with the president, their request for an en banc hearing was granted in October.

“We look forward to arguing our case before the full panel to stop President Trump from violating the Constitution and profiting from the presidency,” D.C. Attorney General Karl Racine and Maryland Attorney General Brian Frosh said in a joint statement ahead of Thursday’s hearing.

But if the three-judge panel’s unanimous findings are any indication of how the full Fourth Circuit will rule, the AGs are in for a fight.

“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,”  U.S. Circuit Judge Paul Niemeyer, a George H.W. Bush appointee, wrote in the July opinion.

The judge said the harm the AGs claimed their residents face is speculative at best, and he admonished them for not suggesting the opposite could happen.

“There is a distinct possibility… that certain government officials might avoid patronizing the hotel because of the president’s association with it,” he wrote.

While the Justice Department and Trump’s private attorneys have argued states have no right to sue over the allegations, Maryland and D.C. aim to focus on the core of their complaint: that the president is opening himself to illegal gifts by continuing to own his private hotels and restaurants. The twin cases target Trump both as an individual and in his official capacity as president.

“The president’s actions undermine the ability of the District and Maryland to pursue their governmental interests free of pressure to gain the president’s favor by patronizing his hotel,” Frosh wrote in an appellate brief. “His actions injure the economic welfare of plaintiffs’ residents, whose businesses suffer a competitive disadvantage.”

But even if the full panel of Fourth Circuit judges side with the president again, there are still two other emoluments cases waiting in the wings.

A challenge brought by congressional Democrats is currently slogging through D.C. courts. A federal judge found that lawmakers had standing to sue, but the D.C. Circuit put a stay on discovery in July, blocking access to the president’s financial records.

In New York, the Second Circuit revived a lawsuit brought by a watchdog group and business owners, finding they have standing to sue the president over government officials visiting his restaurants and hotels.

“Plaintiffs need not prove that every government official who chooses a Trump establishment does so to curry favor with the president by enriching him, nor need plaintiffs prove that a particular government official chose or will choose a Trump establishment for the sole or even the primary reason of earning the president’s favor,” U.S. Circuit Judge Pierre Leval, a Bill Clinton appointee, wrote in the September ruling.

No matter the outcome in the Fourth Circuit, legal experts say there’s a high chance one of the emoluments cases will make it to the U.S. Supreme Court for a final decision. While the high court is usually called upon to decide narrow issues – such as standing for states, AGs or Congress – there’s a chance it could just pick one emoluments case and resolve the larger dispute, according to Seth Barrett Tillman, a constitutional scholar at Maynooth University.

“[The justices] will probably be interested in this case and I can see there being four votes for cert,” Tillman said in a phone interview, referring to the court’s potential decision to take up the dispute.

While Tillman said he is unsure of which case the court might pick, or how the justices might rule, he’s sure of one thing: Trump needs to win in each case to avoid disclosing his private financial records, which he’s pushed back on since the 2016 campaign.

“If he loses any one then he loses,” Tillman said. “The whole point of these cases is discovery, so if they win any they’ll get what they want.”

The Fourth Circuit oral arguments are set for Thursday morning in Richmond.

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