The legal warfare bent on disrupting the Trump presidency continues apace. Just before April Fool’s Day, a federal judge in Maryland refused to throw out the latest politically motivated lawsuit against the president, despite the fact that there is virtually no constitutional basis for it.
Unfortunately, too many judges — in this case, federal judge Peter Messitte — place giving aid and comfort to the “Resistance” movement ahead of applying the rule of law.
Maryland and the District of Columbia sued the president claiming that his ownership of the Trump Hotel in Washington, D.C., violates the Foreign Emoluments Clause of the Constitution. That provision states, “No person holding any Office of Profit or Trust under [the United States] shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
This provision was to prevent foreign powers from bribing government officials with gifts or emoluments. The Founders had seen such corrupt practices especially from monarchs such as Louis XVI, who had a custom of presenting expensive gifts to American diplomats in Paris.
But it is questionable whether the Emoluments Clause even applies to the president, since the Constitution generally does not lump the president in with other officeholders.
Typically, any provision of the Constitution that applies to the president specifically mentions the president. That is why, for example, the Impeachment Clause refers to the “president, vice president and all civil officers” of the government. If “officers” included the president, there would be no need to mention him separately.
The Foreign Emoluments Clause does not mention the president. Legal scholar Seth Barrett Tillman explains that George Washington did not believe he was bound by the Emoluments Clause because he knew it was intended to prevent diplomatic officers from being seduced by foreign corruption.
More importantly, however, the Emoluments Clause is intended to stop foreigners from buying official favors via bribes and gifts. It has nothing to do with transactions in which buyers pay fair market value for goods and services provided by a private business. When an individual, corporation, or foreign government pays the Trump Hotel for using a room or eating a meal there, it cannot be reasonably construed as a gift or an emolument.
To challenge Trump’s personal interest in the Trump International Hotel, Maryland and the District of Columbia had to gain “standing,” i.e., to show that they have been “injured” by the hotel. Their assertions of injury border on the absurd.
The District claims that its ownership interest in the Washington Convention Center has been injured because that facility is losing business to the hotel. Maryland makes similar arguments regarding its own financial interest in a convention center.
Both also argue that they are acting on behalf of the entire hospitality industry operating within their jurisdiction. Here, they cite the doctrine of parens patriae — the principle that a state can assert interests on behalf of its residents as their legal “parent.”
But if a government gets into the hotel or convention business, it is bound to face competition. It has no right to sue just because the public decides to patronize a facility it doesn’t own. It is equally ridiculous for D.C. to claim it is somehow financially damaged if foreign governments rent rooms at the Trump Hotel instead of, say, the Ritz Carlton. In either case, the District government collects the 14.8 percent hotel tax it levies on all hotel stays.
The assertions of injury border on the absurd.
Yet Judge Messitte granted Maryland and the District standing to sue. He claims that hotels such as the Ritz-Carlton and the Four Seasons are at a “competitive disadvantage” because customers have an incentive to stay at a hotel owned by the president, thereby creating an “unlawful effect on competition.” This is a silly argument for a number of reasons.
First of all, global hotel chains such as the Ritz Carlton and the Four Seasons are not going to be hurt financially because some clientele might prefer to patronize a Trump-branded hotel.
Second, the idea that a billionaire with worldwide business interests is going to be unduly influenced because someone buys a cocktail in the Trump Hotel instead of at The Old Ebbitt Grill is inane.
Third, President Trump is making an annual lump-sum payment to the U.S. Treasury of all of his hotel’s profits from foreign-government officials who patronize the hotel, so he isn’t profiting from their spending.
Under Judge Messitte’s legal theory, the more than 10 percent of Americans who own their own businesses would be disqualified from being president unless they are prepared to sell any business they own before entering the Oval Office. That is not, and has never been, a precondition for serving as president. It is an unjustified and wrong interpretation of the Emoluments Clause.
Messitte also makes much of Maine governor Paul LePage’s stay at the Trump Hotel in 2017. Shortly thereafter, the president signed an executive order directing the National Park Service to review all of the national monuments in the country. Maine has a national monument that could be affected by this executive order — as do other states, including many whose governors have not stayed at the Trump Hotel.
Judge Messitte suggests that LePage’s visit will cause other states to think they must patronize the Trump Hotel to protect their interests. It is a leap of logic completely untethered to any actual facts. Yet that is sufficient, in the judge’s opinion, to represent an injury to the quasi-sovereign interests of Maryland and the District of Columbia in protecting the welfare of their residents.
None of the arguments made by the judge meet the most basic requirements established by the Supreme Court to show injury, and thus standing to sue. Yet Judge Messitte refused to dismiss the case.
In doing so, he refused to follow the lead of Judge George Daniels of the Southern District of New York, who recently threw out a similar emoluments lawsuit. Daniels found that the plaintiffs in that case, who also raised unlawful-competition theories, had suffered no cognizable injuries, and therefore lacked standing to sue.
Thanks to Judge Messitte, however, a lawsuit that should have been dismissed will continue, and the American taxpayer will be forced to pay the costs of defending yet another meritless claim against the president. It is just another sign of the unfortunate state of the federal judiciary.
— Hans A. von Spakovsky is a senior legal fellow and John-Michael Seibler is a legal fellow at the Heritage Foundation. Von Spakovsky is the coauthor of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk and Obama’s Enforcer: Eric Holder’s Justice Department.