Q&A: Send in your questions about the D.C., Maryland lawsuit against President Trump

Jun 13, 2017

The Democratic state attorneys general from both D.C. and Maryland filed a lawsuit Monday alleging payments by foreign governments to President Trump's business violate the Constitution's emoluments clause.

Join Washington Post investigative reporter Aaron Davis and send your questions regarding the lawsuit (which you can read here).

Read Aaron's article on the lawsuit here: D.C. and Maryland sue President Trump, alleging breach of constitutional oath

Here's some additional reading:

The official who let Trump keep his government hotel deal explains herself

Despite promise, Trump’s business offers little information about foreign profits

Do President Trump’s business conflicts violate the Constitution?

Hi, I've been covering the decision by D.C. and Maryland to file suit against President Trump, alleging violations of the "emoluments" clauses of the Constitution. Let's pre-game the Sessions testimony, have question? Fire away:

What court reviews this case first and is there a specific deadline for a particular milestone? (i.e. the lawsuit is accepted or thrown out?)

The lawsuit was filed in the U.S. District Court for the District of Maryland (Greenbelt, Md.). -- D.C. Attorney General Karl Racine said Md. Attorney General Brian Frosh "won the arm wrestling" contest, so it was filed there. Court watchers say the the Maryland path could be better for the states. If the case follows a similar path as the travel ban suit, it could go to the Fourth Circuit and then to the Supreme Court.

Is it legal for Trump to use taxpayer's money for his personal legal defense?

The Department of Justice is representing Trump in two suits that have already been filed against Trump regarding emoluments. So, yes, your tax dollars at work.

Now, there are lots of reasons why a sitting president should not face lawsuits, so that's part of the issue at play here.  But there are critics who say DOJ should not represent Trump. Here's more on that.

Do you believe other states have standing to file similar lawsuits and, if so, do you believe that they will?

Other states definitely could make similar claims as DC and Maryland, but this is probably a good point to explain a little about the case for those coming into this cold:

The lawsuit alleges Trump violated two provisions of the Constitution: The Foreign Emoluments Clause and the Domestic Emoluments Clause.

What are those?

They are essentially anti-corruption provisions embedded in the Constitution. The lawsuit rather succinctly describes them as rules designed to “make certain the president faithfully serves the American people, free from compromising financial entanglements with foreign and domestic governments.”

The first provision, the Foreign Emoluments Clause, prohibits any "Person holding any Office of Profit or Trust" from accepting "any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

The clause was added during the Constitutional Convention by Charles Pinckney. His home state, South Carolina, as well as Maryland and Massachusetts already had similar provisions in their state charters.

The states wanted the same protection in the Constitution because they were essentially worried about two things.

1) that diplomats sent abroad by the young republic would be corrupted by their more wealthy host countries. And

2) that once in office, a president would favor his state, or take bribes from others that could lead to unequal treatment. So, on the domestic side, the Constitution set out that presidents could only be paid what Congress approved, and the president could receive no compensation or favors from any particular state.

So, back to Trump.

The issue at hand is Trump’s vast global business empire and the fact that Trump chose to retain ownership of his company when he became president.

Trump said in January that he was shifting his business assets into a trust managed by his sons to eliminate potential conflicts of interests.

But D.C. Attorney General Karl A. Racine (D) and Maryland Attorney General Brian E. Frosh (D) say Trump has broken many promises to keep separate his public duties and private business interests. For one, his son Eric Trump has said the president would continue to receive regular updates about his company’s financial health.

Some of the nuts and bolts of their case are that DC and Maryland have been hurt by Trump’s Hotel in DC. The president has been promoting it. Now foreign diplomats are staying there. Foreign governments are holding events. And that comes -- the lawsuit says -- at the expense of the city’s taxpayer funded convention center and another in nearby Maryland.

Could other states make similar claims? Yes, New York, obviously. But also Florida, where Trump’s Mar-a-Lago resort is located. But Florida has a Republican attorney general. So, far more complicated there.

Why didn't Virginia participate in this lawsuit?

Good question. I emailed Herring's office yesterday and haven't heard back. Fwiw, Herring also stepped down as co-chair of the Democratic Attorneys General Association while he is running for re-election.

Does a state have standing to sue the president for violating the Constitution's emoluments clause.

That's the Million Dollar Question here. Or, considering Trump's net worth, the Billion Dollar Question. The emolments suit by D.C. and Maryland is the first such lawsuit against a sitting U.S. president in the history of the country. So, there's no precedent. Lots of law professors I spoke to yesterday say a state has about the best chance as any to press their case to at least get to discovery -- see the previous answer regarding Maryland's special standing too, they were an original signatory to the Constitution.

As an attorney, I don't think that this lawsuit against Trump has any legs (hello, DC actively courted Trump to develop the Old Post Office location, which had been vacant for years, now it's complaining that it's drawing business from the Convention Center?). It just strikes me as part of the hyper-partisan atmosphere in DC that actually led so many voters to reject the same old, same old and put Trump in office. I think it's a waste of taxpayer dollars and government time, both by the plaintiffs, the court system, and the White House which has to spend money to defend this stupidity. Well, I guess it let two Democrats get their faces in front of cameras and in front-page articles, so mission accomplished for the Dems! If Trump runs again, I'm voting for him just as an act of defiance against this type of abusive of process, waste of money, and hyper-partisanship.

Couple things:

It's true that DC and the federal government wanted the largely vacant and under used Old Post Office developed, but the lease Trump originally signed said no government official could be the leasee, because otherwise, the government would have a contract with itself. Hard to enforce.

But, can't deny the political component here. Democratic attorneys general are taking a page out of Republican AGs playbook from Obama presidency, suing Trump, just as Republicans used courts to try to block ObamaCare, etc.

Also, as my colleague Karen Tumulty pointed out in the newsroom as we were writing our piece yesterday,

State AGs are a pretty ambitious lot, with the job often viewed as a launching pad to the governor's mansion. Lary Sabato once wrote that an old joke has it that the National Association of Attorney's General should actually be called the National Association of Aspiring Governors.

Though, that doesn't quite ring true with Frosh and Racine. DC is not a state, so Racine could only aspire to be mayor. Frosh has not indicated he will join the masses running against Gov. Larry Hogan next year.

 

Can other state AGs join suit, and if so how would that affect case?

Yes, DC and Maryland say they would welcome other states filing paperwork to join the suit. Also expect a lot of briefs, including by a group of historians. They say it's time the court define emoluments.

If more states join the lawsuit the obvious advantage is PR and pressure on the Supreme Court to hear it.. Does it have disadvantages?

One argument I've heard is that states who feel the same way should file lawsuits in different courts, to put them on different paths, in case judges see the issue of standing differently.

What is Trump's likely response to the lawsuit?

Yesterday, White House Press Secretary Sean Spicer said the suit should be dismissed, and he dismissed the effort by D.C. and Maryland as a partisan effort.

Similarly, the only response the Trump administration has made so far in court is that an emoluments case should be dismissed.

My colleague Jonathan O'Connell broke down the Justice Department's lengthy court filing here Friday.

As we all know, the District of Columbia is not a state and thus would seemingly have little standing (at least compared with Maryland). We know why a state could claim standing but what's the theory as to why DC has standing in this case?

True. D.C. is not a state, but there is legal precedent for it to bring suit against the federal government. This will probably not be the main issue the court wrestles with.

What is the hoped-for outcome of the suit?

Depends who you talk to. The D.C. and Maryland attorneys general ask for a declaratory judgement that Trump is violating the Constitution. But they leave it up to the court to fashion a fix. ... some Democrats say the suit would be a victory just if it gets to the discovery stage and forces Trump to produce his tax returns.

Who did the framers of the Constitution envision enforcing the emoluments clause? If states end up not having standing to sue, does this mean that only Congress can enforce it?

Good question. There isn't a lot of discussion about the emoluments clauses in accounts of the Constitutional Convention.

Norman Eisen, the former White House ethics czar under Obama, and who is outside council to DC and Maryland told me the only entity better positioned to bring suit would be the U.S. government.

I see a lot of comments and tweets that the real purpose of the lawsuit is for Frosh and Racine to get their hands on Trump's tax returns and then give them to the press. People should know that personal financial documents, even if produced in discovery during a trial, are routinely made subject to confidentiality agreements and cannot legally be given to the press. If either Racine or Frosh violated that, they could be sanctioned by the presiding judge and/or the bar association and the judge could even dismiss the complaint with prejudice due to the violation of discovery rules. So, don't get your hopes up, folks.

Good point. ... We do live in interesting times. Reading your question, I immediately thought of former FBI Director James Comey testifying last week that he orchestrated leaks of his own memos to the press. 

The Trump Organization recently announced a new budget US hotel chain called the "American Idea". Does the DC/MD case address the Domestic Emoluments Clause? Would this be a pathway for other states to join the suit? Or would this suit lead to an injunction against against building the new chain? (Wouldn't this lead to violation of the Domestic Emoluments Clause? Would any tax breaks given by states to the Trump Organization be seen as a "payment" to President Trump?)

To your last point, the logic of the DC/Md suit would say, 'yes,' that any zoning waiver, tax break, or other inducement by a state for the new Trump hotels would constitute a domestic emolument.

As for relief, wide discretion for the court, but it would be extraordinarily rare for a court to order a President to do something with his own assets.

The emoluments clause would seem to be a much more solid ground for impeachment than the obstruction of justice avenue that is most discussed. Are these lawsuits a way to get this issue into the public eye with that as an endgame?

Only Congress can impeach.

I'm just curious, do we know if ANY foreign government officials have taken the trek up the Rockville Pike to stay at the North Bethesda Marriott? I mean, won't Maryland have to show that the Trump International Hotel is "stealing business" from the Marriott? Am I the only one who realizes how silly this is?

I don't know if diplomats hang out at the North Bethesda Marriott. And if judges ask that question, then this lawsuit probably isn't going anywhere good for Md. and D.C. If they have to get in to the granular ways they have been harmed, it could be tough sledding. But Md. Attorney General Frosh is key on litigating this in the broadest framing. He says that as a state, they don't have to show the level of harm that others would - they will argue they're a coequal check and balance in the grand experiment of American democracy.

Mr Racine had publicly expressed an interest in running for Mayor of D.C. Does Mr Racine have any interest in running for mayor?

Racine has said he will decide soon.

The announcement of yesterday's suit does introduce D.C. voters to what has until now been mostly his under-the-radar work with other Democratic AGs. He's weighed in against Trump on the travel ban, sanctuary cities, environment regulation rollbacks, etc.

If he does run, the mob scene at yesterday's news conference shows he could use his legal suits against Trump as a basis for his campaign (96 percent of D.C. residents voted against Trump last fall). ... But if Racine does not run, it may be because he's enjoying the role of Trump agitator more than being mayor.

Could Governor Hogan have prevented this MD action?

Frosh's involvement in the case marks one of his first lawsuits against the Trump administration since the Democratic-controlled state legislature gave Frosh blanket authority this year to sue the federal government without the permission of its Republican governor.

Frosh had to notify Gov. Larry Hogan in advance. But Hogan did not comment -- even yesterday, after the suit was filed.

There's no doubt this suit puts both Hogan and D.C. Mayor Muriel Bowser in a difficult position. Both have tried to walk a fine line with Trump, saying the D.C. area is especially vulnerable under some of the budget cuts Trump has proposed.

That's all folks. Lots of good questions. Stay tuned. D.C. and Maryland say they expect a response to the lawsuit from the Trump administration within 60 days. For tweet-sized updates, follow me here: @byaaroncdavis

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