The Post reports: “A federal appeals court on Tuesday revived a lawsuit claiming that President Trump is illegally profiting from foreign and state government visitors at his hotel in downtown Washington. The U.S. Court of Appeals for the 4th Circuit agreed to rehear the lawsuit, brought by the attorneys general of Maryland and the District, which was dismissed over the summer by a three-judge panel of the court.” The case will be heard on Dec. 12 and breathes life into one of three ongoing suits against Trump for receipt of foreign emoluments.
The 4th Circuit case was brought by Maryland and the District of Columbia, claiming that Trump’s operation of his hotels and receipt of illegal foreign emoluments caused them harm by diverting business their properties would otherwise have gotten. Another suit has been brought by private competitors of Trump’s, and a third by more than 200 members of Congress.
Constitutional scholar Laurence H. Tribe (who is counsel in a different emoluments case) tells me, “I was convinced the panel’s decision denying standing to Maryland and D.C. in the Emoluments Clause challenge was legally wrong and am pleased to see the full Fourth Circuit seems inclined to agree, bringing it in line with the Second Circuit.” Tribe noted Trump’s run of court losses. “With the stonewall the president had interposed to the impeachment inquiry crumbling as Fiona Hill and others testify despite Trump’s effort to silence them, it’s hard not to sense the tide turning rapidly and decisively.”
Indeed, it is not difficult to imagine that federal courts are in no mood to give Trump the benefit of the doubt as the original three-judge panel is speculating that the plaintiffs wouldn’t be able to show damages. (First-year law students know that is a factual matter that can be resolved by summary judgment after discovery.) While the ruling merely provides that the 4th Circuit judges will hear the case, it is not common to grant an en banc hearing simply to reaffirm a lower court ruling. Something plainly caught the judges’ eyes.
The attorney general for the District sent out a celebratory tweet:
🚨 #BREAKING: The Fourth Circuit just granted DC and MD a rehearing in our #emoluments case against President Trump.— AG Karl A. Racine (@AGKarlRacine) October 15, 2019
Our fight to stop President Trump from violating the Constitution’s original anti-corruption protections continues. pic.twitter.com/PYdBmaDror
The ruling means three separate cases in three separate circuits with three sets of plaintiffs are proceeding in which the plaintiffs have argued that the money Trump’s business operations, including hotels, receive from foreign states may be classified as emoluments. Absent Congress’s consent, he cannot retain that money as president. The cases all stem from the original ethical outrage, namely his refusal to divest himself of his business holdings while in office.
Ironically, the 4th Circuit order comes the very week that Trump’s motives for a full withdrawal of U.S. troops from Syria at the behest of Turkey’s strongman, Recep Tayyip Erdogan, has come under bipartisan, ferocious criticism. Earlier in the day on Tuesday, Senate Minority Leader Charles E. Schumer (D-N.Y.) and House Speaker Nancy Pelosi (D-Calif.) put out a joint announcement on a bipartisan and bicameral resolution condemning Trump’s actions, which have served to benefit only Turkey, Syria and Russia. “Since President Trump gave Turkey the green light to attack our Kurdish partners, Democrats and Republicans in the House and Senate have been united in our swift and serious condemnation of this reckless action, which threatens countless lives, endangers our Kurdish partners and undermines our credibility in the world,” they said in a written statement. “Furthermore, the President Trump’s action not only risks regional security, it risks security in our homeland because ISIS is resurging. Already, dozens of people have died and hundreds of ISIS supporters and families have escaped.”
How is this related to the emoluments problem? The American people have no way of knowing whether this otherwise inexplicable decision to withdraw troops protecting the Kurds in northern Syria was the result of Trump’s yearning to please authoritarian leaders such as Erdogan, or because his family has business interests in Turkey. This was precisely the problem — the risk of foreign corruption and manipulation — that the Founders designed the emoluments clause to prevent.
Trump truly must see the walls closing in. The courts are barreling toward decisions that will force him to cough up all sorts of financial documents (including tax returns), just as a mountain of evidence is building that he pressured Ukraine to involve itself in our election process. It’s almost as though Trump doesn’t know whose side he’s on. Well, actually he is and has only been out for himself, which makes him incapable of upholding his office.