WASHINGTON (CN) — The D.C. Circuit offered little hope Thursday to a Beltway wine bar fighting to revive its unfair-competition claims against the Trump International Hotel.
Counting off various other elected officials who have owned businesses over the years, U.S. Circuit Judge Merrick Garland noted at the hearing this morning that West Virginia Governor Jim Justice owns the Greenbrier Hotel, a 710-room luxury resort, and former Colorado Governor John Hickenlooper owns a brewery.
But the examples failed to ruffle Alan Morrison, an attorney for the Cork Wine Bar in downtown Washington.
U.S. Circuit Judge Thomas Griffith drilled in as Morrison insisted that there is no similar past case on record of this magnitude.
“Why isn’t that a pretty serious problem,” the George W. Bush appointee asked.
Morrison maintained that the unfair competition Cork Wine Bar faces has been “magnified” by hotel officials and the Trump family’s marketing of the establishment as an opportunity for patrons to “curry favor” with the president.
“Any definition of fair, in our view, does not include that kind of activity,” said Morrison, an attorney with George Washington University Law.
Echoing Griffith’s demand, Garland asked whether Morrison was arguing that no government official could own a business while in office. “Why are there no other cases like this?” the Obama appointee pushed.
Morrison emphasized the uniqueness of Trump’s conduct here. He argued that the “distinguishing feature” in the case is that the hotel is “touting” potential favors from the highest office in the federal government in exchange for patronage.
The argument drew swift denials from Morgan Lewis attorney Michael Kenneally, representing Trump Hotel.
In addition to saying there is no evidence of the “implied promises” to foreign diplomats and lobbyists, Kenneally proffered a defense often taken up by the Justice Department and the president’s personal attorneys that Trump operates as the executive under “absolute immunity.”
But Morrison, anticipating the claim, said earlier “everything that the president does does not create an immunity for him.”
Several watchdog agencies on government ethics have been tracking the conflicts of interest that lurk in Trump’s business empire.
Since Trump took office, the Trump International Hotel as of Nov. 22 has seen 318 visits from foreign officials and members of Congress, according to a report from CREW, short for Citizens for Responsibility and Ethics in Washington.
The next most popular Trump property with foreign and domestic government officials is Mar-a-Lago, with 35 visits as of Nov. 22. Trump has personally promoted the Florida resort 39 times, CREW reports, including in a televised cabinet meeting.
Cork Wine Bar noted in its amended complaint meanwhile that former White House Press Secretary Sean Spicer described Trump’s D.C. hotel to reporters once as “absolutely stunning.”
For Thanksgiving next week, the steakhouse in Trump’s D.C. hotel is offering a $149 per person dinner that includes a cranberry mostarda-glazed turkey, focaccia and Italian sausage stuffing, and a rum raisin tart.
Morrison said Friday that Cork Wine Bar chose “to step forward” with the case here since the court has not taken up a similar case since 1982.
Garland, a judge who famously was denied a confirmation hearing for a Supreme Court nomination in 2016, remained skeptical. “I understand but it still requires us to expand … what exists in D.C. law,” Garland said.
At Friday’s hearing, the judges indicated they may consider punting a question of law that the case implicates to the Superior Court for the District of Columbia.
Kenneally argued it would be “inappropriate to certify,” however, saying there was “no reason to trouble” the appellate court with the case that he strongly argued calls “for a modification of D.C. law.”
U.S. Circuit Judge Stephen Williams, a Reagan appointee, rounded out Friday’s panel. The hearing comes one month after Eric Trump, one of the president’s sons, indicated the family may soon sell their namesake D.C. property because of controversy encircling it.
House Democrats are battling numerous lawsuits for access to financial records on the hotel, alleging the president has violated the Emoluments Clause, a constitutional safeguard against foreign influences on corrupting federal officeholders.