Frosh seeks to revive suit over Trump’s D.C. hotel

By Steve Lash
SLash@TheDailyRecord.com

Maryland’s attorney general is seeking to revive the state’s lawsuit alleging corruption by President Donald Trump in the handling of his hotel property in Washington.

Brian E. Frosh, with the District of Columbia’s attorney general, is urging the full 4th U.S. Circuit Court of Appeals to review a three-judge panel’s unanimous decision that Maryland – and the District of Columbia – have at most a “generalized grievance” that the Trump International Hotel is attracting business away from a nearby Maryland convention center and other hotels in Washington.

Lacking a more specific grievance, Maryland and the District of Columbia do not have standing to bring their claim that Trump violated the constitutional prohibition on the president’s accepting “emoluments,” or profits, derived from state or foreign governments or diplomats who visited or stayed in Trump’s hotel, the three judges held last month.

In papers filed Monday with the full 4th Circuit, Frosh and Karl A. Racine said their grievance against Trump is not “generalized” but in keeping with the Supreme Court-recognized interest of a state being permitted to seek judicial relief “in securing observance of the terms under which it participates in the federal system” as an equal sovereign.

“The District and Maryland assert precisely this interest under the Emoluments Clauses,” the attorneys general wrote in their request for full 4th Circuit review.

“The Domestic Emoluments Clause protects the equal sovereignty of the states by ensuring the president cannot be ‘tempt(ed) … by largesses, to surrender … his judgment to their inclinations,’” the attorneys general wrote, quoting Alexander Hamilton from The Federalist Papers. “The Foreign Emoluments Clause likewise protects states in their sovereign capacity from having the federal balance of power tilted unlawfully in favor of foreign over domestic interests.”

U.S. Justice Department attorneys and Trump’s personal counsel have asserted that Maryland and the District of Columbia lack standing to sue him.

Within hours of the three-judge panel’s decision last month, Trump sent out a tweet.
“Word just out that I won a big part of the Deep State and Democrat induced Witch Hunt,” Trump tweeted. “Unanimous decision in my favor from the United States Court of Appeals for the 4th Circuit on the ridiculous Emoluments Case. I don’t make money, but lose a fortune for the honor of serving and doing a great job as your President (including accepting Zero salary!).”

Frosh and Racine, in their Monday filing, said Trump derives unconstitutional benefits from the Washington hotel, which the attorneys general have standing to challenge.

“Through his continued ownership of the hotel, the president cultivates a channel for domestic and foreign officials to bestow emoluments on him,” Frosh and Racine wrote.

“This upsets the careful balance that is the hallmark of our federal system and the level playing field undergirding the federal process generally,” they added. “The District and Maryland each have a constitutionally protected interest in avoiding entirely the pressure to compete with others for the president’s favor by giving him money or other valuable dispensations. That pressure is particularly acute for the District and Maryland because they receive substantial federal funding, have disproportionate economic stakes in federal budgetary allocations, and are home to federal executive agencies.”

The attorneys general’s claim is independent of allegations of self-dealing leveled at Trump this week for his suggestion that next year’s meeting of the world’s seven leading economic powers, the G-7, be held at his Trump National Doral Golf Club in Miami.

Frosh and Racine urged the full 4th Circuit to allow them to pursue their claim that Trump’s Washington property unconstitutionally thwarts competition in Maryland and the District.

“It is not only plausible but near certain that some officials are inclined to patronize the hotel to enrich the president and, necessarily less inclined to patronize competitors,” the attorneys general wrote.

“The complaint amply supports that the District and Maryland are suffering the competitive injury” that provides standing, they added. 

The Justice Department and Trump’s personal counsel will have an opportunity to respond to the attorneys general’s request for full 4th Circuit review.

The appellate court has not set a date for ruling on the request.

The side that loses in the 4th Circuit – either Trump or the attorneys general – is expected to seek review by the U.S. Supreme Court.

The three-judge panel’s decision was written by Judge Paul V. Niemeyer. He was joined by Judge A. Marvin Quattlebaum Jr. and Senior Judge Dennis W. Shedd.

The panel’s decision overturned a ruling last year by U.S. District Judge Peter J. Messitte in Greenbelt that the president can be sued for alleged corruption under the Constitution’s Emoluments Clauses and that the attorneys general are entitled to pretrial discovery of documents and testimony related to their allegation.

The cases are docketed at the 4th Circuit as In Re Donald J. Trump, President of the United States of America, in his official capacity and District of Columbia and State of Maryland v. Donald J. Trump, in his individual capacity, Nos. 18-2486 and 18-2488.