The full U.S. Court of Appeals for the 4th Circuit, sitting en banc on Thursday, overruled a decision from a panel on the same court that prevented a case brought by Maryland and the District of Columbia from proceeding. The case alleged that Trump’s hotel business with foreign governments violates the emoluments clause, and the specific issue for the full 4th Circuit was whether to intervene to force the district court to allow an interlocutory appeal and thereby prevent the district court from proceeding with discovery (which would entail the investigation of Trump’s finances).
The 4th Circuit held that no, the case could proceed as the district court ordered. The majority held that dismissal of the entire action was not warranted because Maryland and D.C.'s argument that emoluments include “all profits and other benefits [accepted from a foreign or domestic government] that [the President] accepts through the businesses he owns” is plausible. In a stunning rebuke of the dissent, three judges wrote in a concurrence: “Without a doubt, a lawsuit brought by the State of Maryland and the District of Columbia against the President of the United States catches attention outside the walls of the courthouse. How then should the Court avoid the appearance of partiality when there are eyes upon it?” The judges answer their own question: “By applying the law and abstaining from grandiose screeds about partisan motives. Or, put another way—by doing its job. And that is exactly what the excellent majority opinion does.”
Rejecting the insinuation that the courts are acting politically against the president, the concurring judges explain that “even the best efforts to editorialize this case as a political fray must acknowledge that the State of Maryland and the District of Columbia present a simple, non-political question: Should [we] override the district court’s discretion not to certify an interlocutory appeal? The answer is equally simple: No.”
Norman Eisen, former House impeachment counsel and one of the early pioneers of emoluments litigation, tells me that the case tells “the essential story of the Trump presidency: a president who puts his personal and political interests above the national interest and the law.” Eisen observes, “In emoluments, he does that by taking foreign and domestic government cash, which the Constitution expressly forbids. Of course, that is the same behavior that got him impeached on Ukraine, and it is the same thing he is doing in his response to covid-19: looking out for himself and not the American people.” He adds, “The arc of justice may be moving slowly, but it is moving. This case shows that the rule of law is fighting back against Trump’s pathological and illegal selfishness.”
Finally, let’s remember that in a separate case, Democratic members of Congress lost a case (albeit on standing) in the D.C. Circuit seeking to enforce the emoluments clause, setting up a potential conflict between that circuit and the 4th Circuit that is ripe for Supreme Court review. If it reaches the Supreme Court it would be interesting to see how self-described “originalists” on the high court treat the plain text of the Constitution and the framers’ concern about foreign corruption.
In any event, “The decision of the full federal circuit court for the 4h Circuit is an important landmark on the long road to enforcing the Constitution’s emoluments clauses — its core protections against the corrupt commingling of personal financial ventures with public service at the highest levels of our government — against the president who has violated those clauses in a more blatant and dangerous way than any other chief executive in our nation’s history,” says constitutional scholar Laurence Tribe.
The walls are closing in on Trump’s lawless presidency. The only question is whether the voters will remove him before he is forced to unveil his finances, which he has strenuously attempted to conceal from voters. One can only imagine what secrets are so damaging that Trump is compelled to litigate up and down the federal courts.
Watch the latest Opinions video: