President Donald Trump is facing a new lawsuit from the state of Maryland and from Washington, DC, over whether his continued ownership of his business empire violates the Constitution’s emoluments clause.
The lawsuit, first reported by the Washington Post’s Aaron Davis, was filed in the US District Court for Maryland on Monday by the attorney general of Maryland and the attorney general of the District of Columbia (who are both Democrats).
“President Trump’s continued ownership interest in a global business empire, which renders him deeply enmeshed with a legion of foreign and domestic government actors, violates the Constitution and calls into question the rule of law and the integrity of the country’s political system,” the plaintiffs write.
And while there’s been some skepticism about whether the suit will prevail in court — and, if it does, how the court’s ruling will be enforced — the plaintiffs could conceivably win a sort of victory along the way by forcing Trump to disclose his tax returns.
The suit claims Trump’s continued stake in his business and his business’s activities violate two clauses in the Constitution. The first is the foreign emoluments clause, which prohibits officers of the federal government from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without Congress’s consent.
The second is the domestic emoluments clause, which forbids the president from receiving emoluments from the US or any state. (An “emolument” means compensation for a service or labor, but there’s some debate over how the term should be interpreted, which you can read about in our explainer.)
Sheri Dillon, a lawyer for Trump, claimed at a January 11 press conference that “paying for a hotel room is not a gift or a present, and it has nothing to do with an office. It’s not an emolument.”
But the two attorneys general argue that because Trump did not divest from his business, and because that business leases and sells properties to foreign government-owned entities and hosts events for foreign governments and diplomats, he’s violating the foreign emoluments clause.
And they claim that various government entanglements with Trump’s DC hotel and his Mar-a-Lago Club violate the domestic emoluments clause too. The Constitution demands, they say, that the president must “disentangle his private finances from those of domestic and foreign powers.”
The first big question here is whether anyone can establish standing to sue Trump over emoluments
To recap: This is actually the second major emoluments clause lawsuit against Trump. The first was filed back in January in the US District Court for the Southern District of New York. But the lead plaintiff there was a nonprofit group, Citizens for Responsibility and Ethics in Washington (CREW), and many doubted that CREW had sufficiently established legal standing to sue Trump.
Before the court system will actually agree to rule on the merits of whether Trump is violating the emoluments clause, plaintiffs must first demonstrate their standing to bring a suit. To do that, they must convince the court that they were directly harmed by what they’re suing about (the alleged emoluments clause violations) in a way the court can remedy.
Now, CREW had argued that they had standing to sue essentially because their staff were overworked by responding to constant media queries on this issue. That seemed like quite a stretch. Later on, CREW added new plaintiffs to their suit who claimed they were being hurt by the Trump Organization’s unfair business advantage.
That first lawsuit’s standing claim isn’t settled yet — last Friday, the Department of Justice filed in support of the president’s motion to dismiss the suit, making the claim that CREW lacked standing, and the court is awaiting CREW’s response.
But now the new suit from the Maryland and DC attorneys general has opened up a new front in the emoluments battle by making a different set of standing claims.
The Maryland/DC argument for standing is, essentially, that their governments and their constituents who compete with Trump are both hurt by the allegedly unconstitutional emoluments Trump’s business is getting, in a variety of ways.
The attorneys general write:
- “As government entities with authority to tax and regulate businesses and real estate, the District and Maryland are harmed by perceived and/or actual pressure to grant special treatment to the defendant and his extensive affiliated enterprises, or else be placed at a disadvantage vis-a-vis other states and governments that have granted or will grant such special treatment.”
- “In addition, the District and Maryland have an interest in protecting their economies and their residents, who, as the defendant’s local competitors, are injured by decreased business, wages, and tips resulting from economic and commercial activity diverted to the defendant and his business enterprises due to his ongoing constitutional violations.”
- “The District and Maryland suffer direct financial harm in their capacity as proprietors of businesses that compete with the defendant’s business.”
Overall, the suit reads like the plaintiffs are throwing a bunch of different standing claims against the wall and hoping one will stick. Generally, it’s good to view the court prospects of novel or unusual standing claims such as these with skepticism.
However, Larry Tribe and Joshua Matz, two lawyers who’ve either consulted on or worked closely with people involved in the Maryland/DC suit, write that because a few recent court rulings under President Obama have shown a newly “robust view of state standing” to sue the federal government, the Maryland/DC standing claim has a shot at success.
Furthermore, back when the House of Representatives sued the Obama administration over Obamacare in 2014, many experts at first dismissed the House’s standing claim as weak — but a district judge went along with it. (That suit remains before an appeals court.)
Another major question is whether this suit can force Trump to turn over his tax returns
If the courts do conclude that the plaintiffs have standing to sue Trump over the emoluments, it’s anyone’s guess how they’ll interpret the constitutional clauses at issue — they’ve never heard a suit against the president on this topic before. The courts could conceivably shy away from the issue as too political, or they could take an expansive view of the relevant clauses. We’d be in uncharted waters.
Still, one issue that could swiftly come up if the suits are judged to have standing is the question of Trump’s tax returns.
One of CREW’s stated goals in its suit is to force Trump to release his tax returns. (Trump claimed during the campaign that he wouldn’t release them because he was under audit, a justification that never made any sense and was mostly dropped once he won.)
And now, Maryland Attorney General Brian Frosh has a similar goal in his own suit. Per the Post, Frosh said Monday that “we’ll need to see his financial records, his taxes that he has refused to release.” We’re a long way from that, but it’s at least a possibility if the courts allow this suit to go forward.