READ: Appeals Court Resurrects Emoluments Lawsuit Over Trump’s DC Hotel

WASHINGTON, DC - JULY 23: Donald Trump attends the Trump International Hotel Washington, D.C Groundbreaking Ceremony at Old Post Office on July 23, 2014 in Washington, DC. (Photo by Kris Connor/Getty Images)
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May 14, 2020 9:35 a.m.

In a split 9-6 decision, a federal appeals court reinstated a key lawsuit challenging President Trump’s business dealings at his downtown D.C. hotel.

An en banc ruling by the Fourth Circuit Court of Appeals reinstated the lawsuit, filed by the attorneys general for D.C. and Maryland with the aim of stopping President Trump from receiving payments from foreign officials through his businesses.

The states argue that Trump’s continued ownership of his hotel violates the Constitution’s Emoluments clause, which prohibits the president from receiving things of value from foreign governments.

Judge Diana Motz, writing for the majority, said that “the President is no ordinary petitioner, and we accord him great deference as the head of the Executive branch.”

The ruling turned less on the particular facts of Trump continuing to own his business, and more on whether the President was justified in filing an emergency appeal to stop discovery in the case — known as a writ of mandamus.

“But Congress and the Supreme Court have severely limited our ability to grant the extraordinary relief the President seeks,” Motz wrote.

The decision conflicts with a February 2020 ruling by the D.C. Circuit, which found that members of Congress who filed a similar Emoluments lawsuit lacked standing to sue.

Trump attorney Jay Sekulow called the case “an example of Presidential harassment,” saying that the President would ask the Supreme Court to review the case.

The Fourth Circuit case was heard by a full panel of judges in December, taking a renewed look at the case after a three-judge panel found that the states lacked standing to sue in July.

Trump has argued for a narrow definition of “emolument,” saying that it only refers to payment “for services rendered” while performing a certain job. The Fourth Circuit took a step towards rejecting that in its opinion, saying “we can hardly conclude that the President’s preferred definition of this obscure word is clearly and indisputably the correct one,” Motz wrote in the majority opinion.

In a dissenting opinion, Judge J. Harvie Wilkinson asked whether President Trump has “operated above the law by operating, directly or indirectly, an asset acquired well before his Presidency?”

Wilkinson went on to argue that the decision “invite[s] the judiciary to assemble along partisan lines in suits that seek to enlist judges as partisan warriors in contradiction to the rule of law that is and should be our first devotion.”

Judge Motz noted the dissent in her opinion, writing, “readers may compare our measured approach with the dramatics of the dissent and draw their own conclusions.”

But Judge Wilkinson took the pitch of his dissent even higher, accusing the his fellow judges of acting in bad faith.

“Can we not see the political cloak we are asked to don?” Wilkinson wrote, adding that no federal court had ever allowed lawsuits to proceed under the Emoluments clause, “until this President.”

“Following this barrage of doctrinal firsts, would it not be fair for our fellow Americans to suspect that something other than law was afoot?” Wilkinson wrote.

Trump is the first president to enter office with substantial business holdings from which he refused to divest.

The majority took aim at Wilkinson in its concurrence, saying that his rhetoric damaged the judiciary.

“Editorial writers, political speechwriters, and others are free, of course, to make a career out of accusing judges who make decisions that they dislike of bias and bad faith,” wrote Judge James A. Wynn. “But the public’s confidence and trust in the integrity of the judiciary suffer greatly when judges who disagree with their colleagues’ view of the law accuse those colleagues of abandoning their constitutional oath of office.”

Wynn went on to accuse Wilkinson, in his opinion, of “commandeering this case as a vehicle to question the good faith of judges and litigants that are constituent members of our Union.”

“Not content with disparaging the judges in the majority as political hacks, our dissenting colleague also bemoans at length this Court’s refusal to resolve many questions not before it: whether the Emoluments Clauses provide a basis for relief, what type of relief might address the asserted injuries, and whether one type of relief—an injunction against the President—is appropriate in our constitutional system despite being unknown to the subjects of King George III,” Wynn wrote.

Wilkinson devoted much of his dissent to picking apart the D.C. and Maryland attorneys general emoluments claim, saying that they only alleged an incidental harm, far too attenuated to rise to the level of a violation of the Constitution. The dissent marshaled pre-revolutionary law to make the argument, saying “at the time of the Founding, however, it was firmly established under English law that the loss of business incident to lawful competition was not a legally cognizable injury.”

Wynn concluded his concurrence by saying that the only issue before the court was “whether a party has demonstrated entitlement to a writ of mandamus.”

He then took aim at Wilkinson’s conservative credentials, suggesting that he was guilty of “unfettered judicial activism.”

“The majority opinion’s painstaking adherence to settled law in the staid domain of procedure exemplifies a conservative and traditional approach of deciding those issues which need to be resolved, rather than opining on speculative issues that may never come before us,” Wynn wrote. “Doing otherwise would amount to unfettered judicial activism.”

Read the opinion here:

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