The competing arguments came during a federal court hearing Monday in Maryland as attorneys parsed the definition of the anti-corruption emoluments clause, a once-obscure provision that now is a pivotal issue in several lawsuits taking aim at the president’s business dealings.
U.S. District Judge Peter J. Messitte is expected to decide this summer whether the case brought by D.C. Attorney General Karl A. Racine (D) and Maryland Attorney General Brian E. Frosh (D) can move forward after a hearing that touched on land deals involving George Washington and on dictionary definitions from the 1770s.
Messitte sounded skeptical of the Justice Department’s narrow definition of the ban, asking the government’s lawyer whether the clause would apply to foreign governments’ booking rooms and touting their patronage at Trump’s hotel to “get in good” with the president.
“That’s not covered?” Messitte asked.
The constitutional clauses in question are something of a blank slate, having rarely been tested in court in more than 200 years. One clause bars federal officers from taking gifts, or emoluments, from foreign governments. The other prohibits presidents from taking side payments from individual states.
Both aim to ensure independence and guard against undue influence by other governments.
The emoluments clause has never been the subject of a major court case and has never been taken up by the Supreme Court, leaving great uncertainty about what it means — and to whom, exactly, it applies — in the 21st century.
Although Trump has said he gave up day-to-day management of his businesses, he still owns them and can withdraw money from them at any time.
The case involving Trump’s Washington hotel cleared an initial hurdle in March after Messitte ruled that the plaintiffs had legal standing to sue the president. The judge said Monday that he would try to rule by the end of July on whether there is a valid legal claim to allow the case to move forward.
In court in Greenbelt, the two sides presented competing interpretations of the word “emolument” based on past practice, the text and a survey of dictionaries from the founding era of America’s government.
Justice Department lawyer Brett Shumate said a violation does not exist unless there is a quid pro quo — a benefit given with expectation of a payback. There must be a bribe, an official action or something akin to an employment contract with the foreign government, Shumate said.
Messitte pointed out that most historical definitions appeared to favor the interpretation by the District and Maryland. “How do you contend with those percentages?” the judge pressed.
He also challenged the president’s lawyer to explain how the government’s definition of emolument differs from bribery, an impeachable offense.
The judge then raised the case of former Virginia governor Robert F. McDonnell (R), whose public-corruption conviction was thrown out by the Supreme Court in 2016. Messitte noted how difficult it is to prove bribery in a criminal case and suggested that the clause was intended to avoid even the appearance of corruption and undue influence.
The attorneys general for Maryland and the District took a broader view than the federal government, arguing that the clause is a strict ban on the acceptance of a “profit, gain or advantage” — in Trump’s case, through his hotel. The prohibition applies, they said in court papers, even when the president does not personally perform a service and when he accepts profits through a business he owns.
Accepting that view and definition, the Justice Department said, would mean that presidents George Washington (in a federal land purchase), Ronald Reagan (in collecting his California state pension) and Barack Obama (in accepting book royalties) violated the emoluments clause. “The implications are simply staggering and should be rejected,” Trump’s lawyer said.
Attorneys representing Maryland and the District rejected the comparisons to past presidents.
Trump has “affirmatively encouraged foreign governments to augment his considerable wealth by doing business with his businesses,” Maryland Solicitor General Steven M. Sullivan told the judge. “He has profited and is profiting on an unprecedented scale from foreign and domestic governments” in violation of the emoluments clause, Sullivan said.
The state attorneys general say Trump could have sidestepped the lawsuit if he had fully disclosed his finances and taken more steps to resolve possible conflicts of interest.
Last year, Trump vowed to donate some profits from foreign governments to the U.S. treasury. The Trump Organization said it donated $151,470 in February but declined to explain how it came up with the amount.
As part of the lawsuit, Frosh has said he and Racine would seek the president’s financial documents and tax returns. If the case is allowed to continue, Racine said, they could seek records related to the hotel’s operations and its business with foreign governments.
The case is one of three suits targeting Trump over emoluments.
In another one, 200 Democrats in Congress asked a U.S. district judge to force Trump to seek congressional approval before accepting emoluments. The judge has not ruled on the merit of the suit.
A third case, brought by the advocacy group Citizens for Responsibility and Ethics in Washington, was dismissed for lack of standing when the group failed to convince a judge that it was directly being harmed. It is under appeal.