If Maryland and the District are successful, Trump may be ordered to do something he has so far avoided and which spineless Republicans have refused to demand — namely, disclose what his businesses receive from foreign governments, and either permanently jettison his ties to those operations or reject payments and other things of value from foreign governments (e.g. trademarks in China). Congress could of course choose to approve Trump’s receipt of his emoluments, but House and Senate Republicans — who like the rest of us don’t actually know what Trump’s businesses receive from what sources — have been loath to do that.
Moreover, if a Democratic Congress is elected, it can choose explicitly to disallow Trump’s receipt of foreign emoluments, setting up a possible constitutional clash. If either Congress or a court holds that Trump must give up certain parts of his operations (or segregate any monies and other valuable offerings from foreign governments), he may finally need to decide whether the presidency is worth giving up parts of his financial empire. Moreover, before a final decision on his retention of foreign emoluments, either Congress or litigants (in one of three cases currently ongoing) could demand a raft of financial records exposing for the first time Trump’s finances, including his tax returns.
I talked about the ruling with Norman Eisen, a former chief ethics lawyer for the Obama administration and chairman of Citizens for Responsibility and Ethics in Washington (CREW), which is serving as outside counsel for the plaintiffs, and constitutional scholar Laurence H. Tribe, counsel in a separate case brought in New York by CREW and private litigants, which was dismissed last year but is on appeal. Here is our conversation (edited for sake of clarity and length).
RIGHT TURN: Can Trump make an interlocutory appeal (i.e. appeal right now before a final decision in the case)?
EISEN: The DOJ [Justice Department] can request an interlocutory appeal, but it is up to the courts whether to allow it. Interlocutory appeals are the exception to the norm, and the DOJ will bear the burden of showing an interlocutory appeal is justified. Also, even if an interlocutory appeal is heard, that does not necessarily stay the proceedings below. The DOJ will also have to ask for such a stay and will bear the burden of showing that a stay is warranted.
RT: Why did this case make it past the first hurdle and not the New York case? Will the New York case be appealed?
TRIBE: We are appealing the decision in the Southern District of New York dismissing our suit there. One reason for the different results is that Judge Messitte considered but rejected as wrong some of the grounds Judge Daniels erroneously gave for dismissing the SDNY case. In particular, Judge Messitte correctly rejected Judge Daniels’s conclusion that because Trump’s patrons chose to stay at his hotel, there was nothing a court could do to redress the injuries caused by the emoluments violations; he also rejected Judge Daniels’s conclusion that only Congress, and not the courts, could enforce the foreign emoluments clause. Judge Messitte’s rejection of these key conclusions from Judge Daniels suggests that the appeals court in New York could similarly reject those arguments. Further, the cases involve different plaintiffs, and as Judge Messitte recognized, the District of Columbia and the state of Maryland are not typical litigants: They are afforded “special solicitude.” That means a lower hurdle to jump to prove standing.
RT: What is the significance of suing in Trump’s personal capacity?
EISEN: At oral argument, Judge Messitte recognized the emoluments clauses present a unique question among constitutional provisions. Unlike nearly all other provisions which involve the exercise of government authority, the emoluments clauses govern the public and private behavior of officers as an obligation of their office. Adding a claim against the president in his personal capacity helps ensure that the court will be able to reach the full scope of the his transgressions and maximizes the chance of success as the case proceeds.
RT: When does discovery start? Will you seek tax returns? Depose Trump? What other Trump associates will you want to depose (Trump’s children, Felix Sater, Michael Cohen)?
EISEN: We are deliberating over a discovery plan. At this time we cannot comment on it other than to say the plaintiffs will certainly seek extensive business records that allow us to understand the scope of the president’s constitutional violations. We believe we can move quickly through discovery once it begins.
RT: Are you asking him to disgorge emoluments received to date? Injunctive relief beyond that?
TRIBE: D.C.’s and Maryland’s complaint asks for only declaratory and injunctive relief, which means only relief going forward. Neither the District of Columbia nor the state of Maryland are seeking damages for past harms.
RT: How does this affect the third case brought by roughly 200 representatives and senators?
TRIBE: This decision provides favorable and well-reasoned precedent holding that a court may consider a suit for injunctive relief against the president when he violates his constitutional duties. While the suit brought by members of congress is differently framed than either the SDNY suit or the one brought by D.C. and Maryland, hopefully Judge Messitte’s thoughtful opinion will provide persuasive authority on those issues which do overlap between the cases.