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The Fourth Circuit Court of Appeals on Thursday revived a lawsuit from the Maryland and Washington, D.C. attorneys general that accuses President Trump of violating the Constitution’s Foreign and Domestic Emoluments Clauses by benefiting from use of the Trump International Hotel by foreign and U.S. officials.
The case previously had been ordered dismissed by a Fourth Circuit panel. But the full roster of judges reheard the case and, in a 9-6 decision, determined Trump cannot have the court overrule a lower court’s decision to deny him certification to appeal before trial.
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“Notably, notwithstanding the President’s vigorous assertion that the court erred in its legal analysis, he does not contend that the district court denied certification for nonlegal reasons or in bad faith,” said Thursday’s opinion, written by Judge Diana Gribbon Motz.
Trump had asked the Fourth Circuit to issue a writ of mandamus, a drastic measure that would have ordered the district court to certify Trump’s appeal in the middle of the case. Trump’s challenge raised issues including whether D.C. and Maryland had standing to sue in the first place, and exactly what the meaning of the word “emoluments” is.
The Foreign Emoluments Clause prohibits the president or anyone else in office from receiving “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without congressional approval. D.C. and Maryland claim that money earned as a result of foreign officials staying at his hotel to curry favor with the president constitutes such an emolument.
The Domestic Emoluments Clause says that the president cannot receive any emolument from the U.S. or any individual state other than his or her salary. The lawsuit alleges that Trump is receiving such emoluments when state officials stay at his hotel.
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Trump’s request for a writ of mandamus also asked that if the Fourth Circuit does not force his appeal to go through, they should just order the district court to dismiss the case. Thursday’s ruling denied this request, saying that the president has not demonstrated a “clear and indisputable right to dismissal,” and that “reasonable jurists can disagree in good faith on the merits” of the lawsuit’s claims.
In a blistering dissenting opinion, Judge J. Harvie Wilkinson III wrote that what is really “clear and indisputable” is “that this action should never be in federal court” in the first place. He said he would order the district court to dismiss the case entirely, and that “the federal judiciary has sorely overstepped its proper bounds” in the case.
The dissent notes that if the president is violating the law by receiving illegal emoluments, Congress has the power to impeach him for it, which they have not done.
“The majority is using a wholly novel and nakedly political cause of action to pave the path for a litigative assault upon this and future Presidents and for an ascendant judicial supervisory role over Presidential action,” Wilkinson wrote.
The dissent also questioned how the matter should even be handled if Trump were violating the Constitution by benefiting from his hotel, rhetorically asking if they should issue an injunction keeping foreign officials out, or force Trump to divest from the hotel or even close the hotel entirely while he is in office.
“I have not the slightest idea,” the judge wrote.
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The case will now go back to the United States District Court for the District of Maryland, where it will continue forward.
The D.C. Circuit Court previously dismissed a similar lawsuit brought by more than 200 Democratic lawmakers, stating they lacked standing.
