A federal appeals court gave President Donald Trump a major victory over Democrats Wednesday, throwing out as a political squabble a lawsuit by Maryland and the District of Columbia arguing the president’s ownership of Trump International Hotel and other properties violates the Emoluments Clauses of the U.S. Constitution.
The president is a billionaire businessman, whose family-controlled Trump Organization owns a global business empire, including properties like Trump International Hotel in Washington, DC.
The Democrat attorneys general of Maryland and D.C. brought one of several lawsuits nationwide arguing that the president is violating the Emoluments Clauses, demanding various types of court action against the president. The plaintiffs say these clauses are violated when foreign governments or state governments stay at these hotels.
The Foreign Emoluments Clause of Article I, Section 9, Clause 8 of the Constitution provides:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
And the Domestic Emoluments Clause in Article II, Section 1, Clause 7 provides:
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
These lawsuits were filed in liberal-leaning federal judicial districts located in liberal federal appellate circuits. A liberal Democrat appointee, Judge Peter Messitte, ruled against President Trump on preliminary matters that could have dismissed the case. The district judge then refused to certify his order for immediate appeal.
A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit reversed, blasting Messitte for refusing to certify his ruling, declaring, “The court’s refusal to certify therefore amounted to a clear abuse of discretion.”
Judge Paul Niemeyer wrote for the panel, faulting Messitte for his belief that “he was unquestionably correct and therefore that there existed no substantial ground for difference of opinion.”
Niemeyer continued that Messitte:
failed to recognize, among other things, that no previous court had enforced the Emoluments Clauses; that no decision had defined what “emoluments” are; that no prior decision had determined that a party can sue directly under the Emoluments Clauses when the constitutional provisions provide no rights and specify no remedies; and that no case had held that a State has standing to sue the President for alleged injury to its proprietary or sovereign interests from a violation of the Emoluments Clauses. One can hardly question that these are “new legal questions” of “special consequence.”
Regarding the Emoluments Clauses, “neither Clause expressly confers any rights on any person, nor does either Clause specify any remedy for a violation,” noted the Richmond-based appeals court. “They are structural provisions concerned with public corruption and undue influence.”
The court observed the purpose of the former is to prevent a federal official from being unduly influenced by foreign money, and the latter is to prevent a president from being bought off by one of the states.
Joined by Judges Marvin Quattlebaum and Dennis Shedd, Niemeyer then addressed the more fundamental question of whether Article III of the Constitution even grants a federal court jurisdiction over this lawsuit.
The constitutional question is “whether the District and Maryland have an interest sufficient to bring a suit under the Emoluments Clauses,” he wrote. “Not only would they need to show that the alleged violation caused them harm, but they might also need to show that such harm fell within the zone of interests protected by the Clauses.”
“For relief, moreover, the District and Maryland seek an injunction against the President himself,” he continued, “a form of relief that the Supreme Court has termed ‘extraordinary’ and has advised should ‘raise judicial eyebrows.’”
The court rejected Maryland and D.C.’s argument that the president’s business interests injure them as sovereign states (even though D.C. is not a state). “Indeed, there is a distinct possibility — which was completely ignored by the District and Maryland, as well as by the district court — that certain government officials might avoid patronizing the Hotel because of the President’s association with it,” the Fourth Circuit wrote.
Even if the plaintiff states were injured, the court concluded that “the link between government officials’ patronage of the Hotel and the Hotel’s payment of profits or dividends to the President himself is simply too attenuated,” and therefore that the injury could not be fairly traced to the president, which the Constitution requires for a federal court to claim jurisdiction over the plaintiffs’ case.
“This deficiency was remarkably manifested at oral argument when counsel for the District and Maryland, upon being questioned, was repeatedly unable to articulate the terms of the injunction that the District and Maryland were seeking to redress the alleged violations,” Niemeyer added. “When plaintiffs before a court are unable to specify the relief they seek, one must wonder why they came to the court for relief in the first place.”
The Fourth Circuit quoted relevant Supreme Court precedent, where the justices wrote:
that a plaintiff raising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy.
“As in [an earlier Supreme Court case],” Niemeyer went on, “the District and Maryland’s interest in constitutional governance is no more than a generalized grievance, insufficient to amount to a case or controversy within the meaning of Article III.”
Niemeyer quoted the Supreme Court 1984 Valley Forge decision, where the Court held:
To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing “government by injunction.”
The Fourth Circuit panel concluded:
The District and Maryland’s interest in enforcing the Emoluments Clauses is so attenuated and abstract that their prosecution of this case readily provokes the question of whether this action against the President is an appropriate use of the courts, which were created to resolve real cases and controversies between the parties.
The panel thus granted the very rare mandamus petition the Justice Department asked for, ordering the trial court to certify this case for appeal, then immediately deciding the appeal, and ordering the case dismissed for lack of jurisdiction.
This victory may be short-lived, however. Currently, the Fourth Circuit is essentially tied with the Ninth Circuit as the most liberal federal appeals court in America, one of the reasons that this lawsuit was filed in Maryland. The Democrat attorneys general can now petition the full Fourth Circuit to rehear the case en banc with all 15 judges.
If the full Fourth Circuit reverses the panel and sides with the Democrats, the Supreme Court is very likely to take up the case next year.
The case is In re Trump, No. 18-2486 in the U.S. Court of Appeals for the Fourth Circuit.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.