Maryland, DC AGs Ask Fourth Circuit to Rehear Emoluments Suit

The Trump International Hotel at 1100 Pennsylvania Avenue NW in Washington, D.C. (AP Photo/Alex Brandon, File)

WASHINGTON (CN) – Maryland and Washington, D.C., lobbied Monday for the the Fourth Circuit to rehear a lawsuit that accuses President Donald Trump of violating the Emoluments Clause of the Constitution.

The clause bars Trump and other sitting presidents from receiving gifts from foreign or state governments while in office without congressional consent.

In a joint statement Monday, the state’s and district’s attorneys general said circuit court’s dismissal of the case was unprecedented.

“We are asking the entire Fourth Circuit Court of Appeals to rehear our case so that we can keep fighting to stop President Trump from violating the Constitution’s original anti-corruption protections,” they said. “We strongly believe that the District of Columbia and Maryland are harmed when the President illegally profits from his office.” 

“The way the panel short-circuited this litigation – without a final judgment from the trial court and without that court’s permission – is truly unprecedented,” they added.

In early July, a three-judge panel of the Fourth Circuit granted Trump’s petition for writ of mandamus and instructed a Maryland district court to dismiss the complaint. 

Writing for the panel, Circuit Judge Paul Niemeyer – a Ronald Reagan appointee – said the state and district lacked standing and rejected their argument that certain hotels in Maryland and Washington had been harmed by foreign government officials spending money at the Trump International Hotel.

In a petition filed Monday, Maryland Attorney General Brian Frosh and Washington D.C. Attorney General Karl Racine argue that the circuit court’s reversal was executed in an unprecedented manner, stating that the court “effected a sweeping expansion of appellate jurisdiction irreconcilable with the terms of Section 1292(b) and the decision of every court that came before it.”

“Having improperly acquired appellate jurisdiction, the panel then compounded its error by reversing and remanding the suit with instructions that it be dismissed because the District of Columbia and Maryland lack Article III standing,” the petition for rehearing states. “That decision conflicts with the Supreme Court’s repeated recognition of states’ quasi-sovereign interests and the cognizable ways in which those legally protected interests can be invaded.”

The state and district claim that the president is cultivating a “channel for domestic and foreign officials to bestow emoluments on him” through his continued ownership of the hotel. 

“This upsets the careful balance that is the hallmark of our federal system and the level playing field undergirding the federal policy process generally,” the petition states. 

“The District and Maryland each have a constitutionally protected interest in avoiding entirely the pressure to compete with others for the President’s favor by giving him money or other valuable dispensations,” it continues. 

While the panel conceded in its July order the argument that the gifts could violate the competitor standing – which recognizes when a plaintiff suffers injury due to regulatory changes that increase economic competition – it did not agree that the hotel reaped competitive advantage. 

The court found this contention required speculation on the part of the plaintiffs, but the states contend in their new petition that such logic is flawed.

“First, it is inconsistent with the logic underlying the Emoluments Clauses to suggest that the opportunity to financially enrich the President would not tempt officials to try to influence him in this way,” the petition states. “Second, the panel puts forward a theory of foreign and domestic officials’ behavior that is not only wrong, but contrary to the complaint’s well-pleaded allegations.”

Some of Trump’s predecessors have dealt with Emoluments Clause issues: Former President Barack Obama asked Congress for permission to accept the Nobel Peace Prize in 2009, and former President Jimmy Carter put his family’s peanut farm into trust in an effort to comply with the rule after he was elected in 1977.

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