WASHINGTON — Lawyers battling to prevent President Trump from profiting off of his private businesses — and to potentially force him to divest from those businesses and even reveal his personal tax returns — just notched their biggest victory yet.
A federal judge ruled Wednesday that he would not block a lawsuit filed by the attorneys general of Maryland and the District of Columbia that accuses the president of violating the Constitution by accepting emoluments — gifts or payments — from foreign governments. According to the two attorneys general, the decision is the first time in history that a U.S. court has interpreted the emoluments clause and applied it to a sitting president. The clause bans the president from receiving emoluments from a “King, Prince or Foreign State.”
U.S. District Judge Peter Messitte’s decision “represents a major leap forward in being able to understand how Trump is profiting off the presidency, including possibly from Russia,” Norm Eisen, one of the co-counsels on the case, tells Rolling Stone. “The court has already ordered the preservation of Trump business records. Everything is on the table that is necessary to prove our claims, while at the same time moving expeditiously to trial. ‘Follow the money,’ the old adage goes, and we are going to do exactly that thanks to this decision.”
The emoluments clause didn’t become a household phrase until Trump entered office and refused to meaningfully divest from his businesses and other investments in the U.S. and overseas. Multiple lawsuits were filed against the president, citing the various times foreign governments like Kuwait and the Philippines have spent money at Trump’s Washington hotel — money that presumably flowed back into the president’s own pockets.
One of those suits was filed in June 2017 by Maryland AG Brian Frosh and D.C. AG Karl Racine, with the help of the watchdog group Citizens for Responsibility and Ethics in Washington. “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,” they wrote. “Never before has a president acted with such disregard for this constitutional prescription.”
As I reported at the time, the two AGs pinpointed President Trump’s continued ownership of his businesses in D.C. and Maryland — like his Washington hotel — as particularly problematic.
Justice Department lawyers sought to dismiss Frosh and Racine’s suit by arguing they had failed to show D.C. and Maryland would suffer injuries as a result of Trump’s continued ownership of his businesses. The DOJ also criticized the case as politically-driven and an effort by two Democratic elected officials to go on “fishing expedition” through the president’s private business records.
The DOJ has had some success beating back other emoluments-related suits. But in this instance, the judge seemed receptive to Frosh and Racine’s argument, including their interpretation of the emoluments clause and how Trump had run afoul of it. In an earlier decision, Messitte narrowed the scope of the case to focus on Trump’s Washington hotel, located a few blocks from the White House.
But in his 52-page ruling published Wednesday, Messitte wrote that the current situation — a sitting president profiting from a hotel that foreign and domestic governments and other interests use for business — was exactly what the framers had in mind when they created the emoluments clause. “In sum,” he wrote, “Plaintiffs have plausibly alleged that the President has been receiving or is potentially able to receive ‘emoluments’…in violation of the Constitution.”
The Justice Department can appeal Messitte’s ruling. But if it stands, Frosh, Racine and CREW will soon have the chance to seek access to the Trump Organization’s internal records and to interview Trump Organization employees about the Washington hotel and the foreign governments that have done business there. There is also the possibility they will seek to obtain the holy grail of Trump-related documents: the president’s tax returns, which he has yet to disclose, breaking with a four-decade tradition by major-party presidential candidates.