- The Washington Times - Thursday, May 14, 2020

The Trump administration announced Thursday it will appeal to the Supreme Court after a circuit court rejected President Trump’s move to dismiss a case against him for allegedly profiting personally from his government position.

Washington, D.C., and the state of Maryland had filed a complaint in district court against Mr. Trump claiming he is violating the Emoluments Clause of the U.S. Constitution by operating hotels and businesses in his name where foreign officials frequent. The focus of the dispute has been Trump International Hotel in D.C., not far from the U.S. Capitol.

The Foreign Emoluments Clause says no individual holding office can accept a present “of any kind whatever, from any King, Prince, or foreign State” without the approval of Congress.

The president’s legal team argued to the full 4th U.S. Circuit Court of Appeals that the case against him should be dismissed. But in a 9-6 ruling on Thursday, the court allowed the lawsuit to move forward.

“We recognize that [D.C. and Maryland] press novel legal claims. But reasonable jurists can disagree in good faith on the merits of these claims,” wrote Judge Diana Gribbon Motz, a Clinton appointee, in the opinion for the court.

Judge James Harvie Wilkinson III, a Reagan appointee, disagreed with the court’s majority, writing in a dissent that legal precedent on the Emoluments Clause is unclear, and the court is “using a wholly novel and nakedly political cause of action to pave a path for a litigative assault against this and future Presidents.”

“I make but one point—that the federal judiciary, no less than the President, is subject to the law. And here the federal judiciary has sorely overstepped its proper bounds,” he wrote.

Brianna Herlihy, a spokesperson for the Justice Department, said the ruling was disappointing, but the group of dissenting judges recognized the suit is unprecedented and should have been dismissed.

“The court of appeals erred by not even considering the merits of the President’s defenses. The Department of Justice intends to seek further review in the Supreme Court,” she announced.

The 2nd U.S. Circuit Court of Appeals, like the 4th Circuit, revived another emoluments challenge against Mr. Trump last year. This one is brought by a watchdog group, Citizens for Responsibility and Ethics in Washington.

But the federal appeals court in Washington had dismissed yet another challenge earlier this year, which was brought by Democratic lawmakers. That court unanimously ruled the members of Congress lacked a legal injury.

It is not uncommon for legal disputes that result in split rulings among federal circuit courts to end up before the Supreme Court.

D.C. Attorney General Karl A. Racine told reporters he and Maryland Attorney General Brian E. Frosh — both Democrats — didn’t operate based on politics.

“The Emoluments Clause was our Framer’s first successful attempt at drafting an anti-corruption law,” Mr. Racine said.

He noted his hope is the case goes back to the district court where subpoenas are allowed to proceed as the case is litigated. They have subpoenaed records from the Trump Organization to show the Trump hotel in the District received payments from foreign sovereigns.

The attorneys general said they will defend the case at the Supreme Court if the justices agree to consider the dispute.

Mr. Frosh said the Emoluments Clause is necessary to make sure the president puts America’s interest first and doesn’t try to enrich himself.

Donald Trump is not above the law. He doesn’t get a special pass,” Mr. Frosh told reporters.

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