A U.S. District Court in Maryland is where Donald Trump is being sued for violating the Emoluments Clause of the Constitution, arguing that he is using the presidency to enrich himself by receiving business from foreign governments to his resorts in order to influence his decisions. He’s being sued by the city of Washington, DC and the state of Maryland.
The New York Times reports on the most recent hearing in the case, on a motion to dismiss filed by Trump’s attorneys. It doesn’t sound like the judge is likely to grant that motion. Here’s what that clause actually says:
“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.”
The key question is the meaning of the word “emolument.” The plaintiffs argue that it means pretty much anything of value. Trump’s argument, in a nutshell, is that the only thing forbidden by the Emoluments Clause is an actual quid pro quo, which of course would be nearly impossible to prove in any case. From the Times report, it seems the judge is skeptical of Trump’s argument:
A federal judge on Monday sharply criticized the Justice Department’s argument that President Trump’s financial interest in his company’s hotel in downtown Washington is constitutional, a fresh sign that the judge may soon rule against the president in a historic case that could head to the Supreme Court…
The Justice Department contended that the Constitution’s framers meant only to bar federal officials from providing a service to a foreign government and receiving compensation. For example, said Brett Shumate, a deputy assistant attorney general, the Constitution would prohibit Mr. Trump from signing a treaty in exchange for a financial benefit. But it allows him to profit financially from foreign diplomats who book his hotel because there is “no allegation that in exchange, he took some official action,” he said.Judge Messitte repeatedly challenged that interpretation, asking whether the framers meant merely to rule out outright bribery or to ward off situations that could give rise to corruption as well.
“Is your argument that as long as the president takes the money without corrupt intent, it’s O.K.?” he asked Mr. Shumate. “It has to be an actual quid pro quo?”
Steven M. Sullivan, the solicitor general for the state of Maryland, argued that it would be absurd if Mr. Trump were barred only from profiting for personally rendering a service to a foreign government. That “would prohibit him from accepting $5 for carrying a diplomat’s bags up to a suite at the Trump International Hotel but would permit him to receive thousands of dollars from the same foreign government” for its hotel bookings, he said.
As seems to be more and more common these days, Trump’s lawyers tried to make a political argument rather than a legal one. They claimed that Trump is being singled out and noted the example of Penny Pritzker, who served for a time as Obama’s Commerce Secretary and owned stock in Hyatt Hotels, which got bookings from foreign governments as well. Judge Messite swatted down that argument for an obvious reason. “It may well have been a violation,” he said. “I don’t know. No one challenged it.”
The judge’s job is to adjudicate the case in front of him. The fact that someone else may have been guilty of the same thing in the past but no one filed suit against it is completely irrelevant to the case in front of him. This is the kind of argument that Larry Klayman makes constantly and they tend to annoy the hell out of judges because it just wastes time and they perceive it, correctly, as political grandstanding — playing to the crowd — rather than a serious legal argument.