MANHATTAN (CN) – Deciding whether to revive a case calling Trump-branded businesses a threat to the Constitution, a federal appellate judge noted Tuesday that the president’s enterprises certainly have a leg up on the competition.
“The Trump restaurants and hotels are offering something that nobody else can offer,” U.S. Circuit Judge Pierre Leval said, identifying this as the ability to “line the pockets of the president.”
One of three judges sitting on the Second Circuit panel, Leval appeared inclined to reverse a federal judge’s ruling in December throwing out a lawsuit by local hotels and restaurants calling that competitive advantage unconstitutional.
“Why is that speculative?” Leval asked a government attorney.
Citizens for Responsibility and Ethics in Washington, an anti-corruption watchdog also known as CREW, has argued that Trump’s business entanglements violate the U.S. Constitution’s emoluments clause, which bars politicians from accepting “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”
CREW’s attorney Deepak Gupta told the three-judge panel Tuesday that those words exist for a reason.
“The Framers were right that the ability to line the pockets of officials matters,” Gupta said.
Judges across the country are split over which branch of government should enforce the emoluments clause.
In New York, U.S. District Judge George Daniels ruled that this should be left to Congress, but his Washington-based colleague U.S. District Judge Peter Messitte disagreed in a recent decision finding that the judiciary has a role.
On Tuesday, Leval warned: “If these plaintiffs are not allowed to sue, no one is allowed to sue.”
U.S. Circuit Judge John Walker Jr., his Second Circuit colleague, countered that this does not settle the issue.
“The fact that no plaintiff can bring a suit is not fatal to an argument of lack of standing,” Walker said.
The final member of the panel, U.S. Circuit Judge Christopher Droney, also expressed concern that dismissing the lawsuits could leave the constitutional protection toothless.
“If it’s just corruption, and the president doesn’t bring it to Congress for approval, how does it get enforced?” Droney asked.
Arguing for the Trump administration, deputy assistant attorney general Hashim Mooppan offered a striking hypothetical of a case that could be brought.
“Imagine if the Chinese government just took the pandas that they gave to the zoo and gave them to the president,” Mooppan posited.
In that case, Mooppan said that the zoo and its patrons could be possible plaintiffs.
A seemingly flabbergasted Leval called that analogy a stretch.
“I wanted to visit pandas in the zoo,” the judge said. “You would say that I would have standing?”
Mooppan also argued that Trump’s presidency could work against his businesses.
“The president, I think it is fair to say, is a very polarizing person,” the attorney said, adding that this could prove a “disincentive” for many patrons.
After Trump’s election, various news outlets quoted diplomats around the world saying they would patronize Trump’s hotels and restaurants to curry favor with the president. CREW quoted those reports in their complaint and went farther in seeking evidence that these conflicts-of-interest would harm their clients.
“We have unrebutted expert testimony,” Gupta noted.
While the government’s attorney called it speculative to argue that the hotels and restaurants suing Trump would otherwise get his business, Gupta noted that the New York and Washington hospitality markets are small. There are a limited number of two-star Michelin restaurants in Midtown Manhattan.
“We have one; they have one,” he said.
The court reserved decision on the matter, leaving the future of the New York emoluments litigation in suspense. CREW’s other lawsuit in Washington meanwhile still continues.
CREW’s chairman Norm Eisen, who represents Maryland and Washington, D.C. as co-counsel in that case, attended this morning’s proceedings. He said in an interview en route back to the capital that he was pleased with what he saw.
“It was a smart and thorough examination of both sides by the panel,” he said. “For the reasons we gave, we think we have the better of both arguments, but we will see how the court rules.”