U.S. District Judge Peter Messitte issued an order on Wednesday that has cleared the way for a lawsuit against Donald Trump to proceed. As a result, the Attorneys General of Washington D.C. and the state of Maryland now have legal standing to bring their cases against Trump over his alleged violations of the Emoluments Clause of the U.S. Constitution.
Specifically, this is Clause 8 of Section 9 under Article I, which states that “...no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Since the Constitution was adopted in 1789, this particular part of the law has never been tested, nor clearly defined – meaning that this case is entering some uncharted legal territory.
Thus far, the bone of contention has been the phrase “consent of the Congress.” Department of Justice lawyers, who are defending the lawsuit, have argued that only Congress can determine whether or not Trump was in violation of the law. Judge George B. Daniels of the Southern District of New York dismissed an earlier lawsuit brought by the organization Citizens for Responsibility and Ethics in Washington, arguing, “As the only political branch with the power to consent to violations of the Foreign Emoluments Clause, Congress is the appropriate body to determine whether, and to what extent, Defendant’s conduct unlawfully infringes on that power.”
Judge Messitte has determined that since Congress has failed to take action on this issue, the task falls to the judiciary. In his decision, he wrote, “In absence of Congressional approval, this Court holds that it may review the actions of the President to determine if they comply with the law.”
A motion to dismiss the present case, District of Columbia v. Trump, was filed in September 2017. It has alleged that Trump has used the office of the Presidency to profit from the operations of his hotel and resort operations. At the heart of the controversy is the question of what constitutes an “emolument.” Plaintiffs have argued that Trump has violated the law because foreign governments have paid his organization for the use of facilities at his establishments. The defense argues that the word “emolument” refers to outright gifts, not payments for goods and services rendered.
Judge Messitte's ruling focuses on his hotel in downtown Washington D.C., as he considers that other locations have had no direct impact on the state of Maryland or the Capitol. After the election of 2016, Trump stated that he would withdraw from direct management of his business interests while in office; however, he retains ownership and is able to take funds from those operations at will. Prior to this, every U.S. President has either liquidated his business interests or placed them into a blind trust prior to taking office.
It is likely, and even probable that Judge Messitte's ruling will be appealed. Nonetheless, plaintiffs are hopeful that his decision will be a step forward as they attempt to demonstrate that Trump has indeed violated the law. At the very least, it may finally give a way for Trump's critics to access the financial records – including tax returns – that he has thus far refused to make public.