Trump Asks Appeals Court To Consider How Great His Hotels Are

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January 28, 2019 11:55 a.m.

Facing a lawsuit claiming that he is violating the Constitution’s emoluments clause by remaining financially linked to his Washington, D.C., hotel, President Trump argued last week that there are many reasons why foreign governments and lobbyists would want to stay at his hotel.

Trump’s lawyers wrote in a brief filed in the Fourth Circuit Court of Appeals that there’s no way to prove that a foreign official looking to curry favor with the White House would stay at a Trump Organization hotel or property simply “because the President might receive some part of the profits.”

Attorneys for the president  laid out what feels like an advertising pitch for the Trump hotel chain, wryly giving other reasons why a foreign official might want to stay at a Trump property.

“Not because the Hotel provides better accommodations. Not because the Hotel is located conveniently in the heart of D.C. Not because the officials simply like the President, enjoy BLT Prime, prefer the Trump brand, admire the Old Post Office building, or a host of other idiosyncratic reasons,” the brief reads. 

Trump’s lawyers made that argument while asking a panel of judges to mull whether to throw out a lawsuit filed by the Maryland and Washington, D.C., attorneys general against Trump in his personal — and not official — capacity.

For Trump, the distinction between suing him in his personal capacity verses his official capacity is both crucial and relatively rare in the annals of civil lawsuits against federal employees. If allowed to proceed, the case will test claims against Trump as an individual, meaning that he would be personally liable for whatever damages emerge from the case, and not the federal government.

The lower court case was halted in December, after the Fourth Circuit Court took up an appeal regarding the portion of the lawsuit filed against Trump as an individual and an appeal from the DOJ, which filed a writ of mandamus, essentially suing the lower court judge for allowing discovery to proceed in the case.

The Jan. 24 filing discloses some details about the “almost forty” subpoenas filed for discovery in the case. Trump’s lawyers write that the state attorneys general sought “the identify of every guest who had stayed at the Hotel or spent money there, the amount that was spent, marketing and other communications between the Hotel and potential customers, and the distribution of revenues within The Trump Organization and its affiliates.”

Trump’s lawyers go on to argue in favor of a narrower definition of “emolument” than that proposed by the state attorneys general, which was approved by the district court.

According to the President’s lawyers, an emolument should be “payment in compensation for personal services performed through official acts or in employment-type relationships” — effectively a payment made in exchange for an act taken as president. 

The brief also mentions examples from past presidents, returning to cite the Mount Vernon tourist portal as saying that “Washington operated a grist mill during his presidency that exported flour and cornmeal to ‘England, Portugal, and the island of Jamaica.'”

Trump’s attorneys move on to more recent examples of presidents having business interests that generate foreign profits, arguing that there’s no way to draw a line between the Trump’s hotels, the founder’s plantations, and Obama’s book sales.

“Royalties on foreign book sales received by President Obama while in office” would violate the emoluments clause if a foreign state-owned university bought the book, the brief reads.

A separate appeal in the fourth circuit was filed by the DOJ, acting for Trump as a government official. Those proceedings will review a separate claim that the Fourth Circuit should step in and halt the case before resolution because the discovery process would deal unnecessary damage to Trump.

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