Trump business dealings argued at federal appeals court in emoluments case
Judges questioned how members of Congress could approve the president’s business activities if Trump’s clients are not made public.
“How could Congress pass a law without knowing what the president is doing in respect to emoluments?” asked Judge David S. Tatel of the U.S. Court of Appeals for the D.C. Circuit.
The arguments came amid a set of cases over a rarely tested anti-corruption provision of the Constitution bars U.S. officials from accepting payments or “emoluments” from foreign governments without sign off from Congress.
Challenges to Trump’s business dealings have been working through the federal courts for months with subpoenas for his financial records connected to the challenges put on hold in the meantime.
Mooppan said Monday that it was unlikely the framers of the Constutitution would have required a president in the 19th Century who owned an inn to ask guests whether a foreign government would be paying for their stay — as the Trump Organization does today of guests booking ballrooms at Trump’s D.C. hotel. “That seems utterly implausible,” Mooppan argued.
Mooppan said the judges ought to throw out the suit from more than 200 congressional Democrats because the members of Congress had not been harmed by the president’s business, which has booked hotel rooms and office space to foreign governments.
The Democrats are asking the appeals courtto enforce the emoluments clause by barring Trump’s business from doing business with foreign governments while he is in office.
The lawsuit is one of three similar cases pending in appeals courts, one step below the Supreme Court, and has the potential to reveal details about the president’s closely-held business interests. An appeals court in Richmond is set to take up another of the cases Thursday.
These cases are distinct from others already pending at the Supreme Court and involving subpoenas from House investigators and New York prosecutors seeking access to Trump’s tax and financial records. All were filed before the House began the public phase of its impeachment proceedings.
The congressional case heard Monday extends beyond Trump’s luxury hotel in downtown Washington, which he leases from the federal government and where the governments of Kuwait, Malaysia, Bahrain, Saudi Arabia and others have paid to hold events or book rooms.
Attorneys for the lawmakers from the nonprofit Constitutional Accountability Center said in court filings that examples of Trump’s alleged violations have become “increasingly brazen.” They point to the administration’s recent decision, which it later reversed, to host foreign leaders at next year’s G-7 meeting at Trump’s Doral golf course in Florida.
Justice Department lawyers, representing Trump in his official capacity, urged the D.C. Circuit in recent filings to throw out the “fatally flawed suit.” Individual members of Congress have no legal right to sue, they say, for an alleged injury to the entire legislative body.
The Constitutional ban, in the department’s view, refers narrowly to compensation in exchange for official action or in an employment-type relationship — and does not broadly include any profit, gain or advantage.
In response, the lawmakers’ lawyers say the provision is intended to prevent foreign influence and corruption of U.S. officials by giving individual members of Congress a vote on whether to allow receipt of a foreign emolument before it is accepted.
Without a court order, they ask, how else can Congress force Trump’s private companies to stop taking payments from foreign states?
Court filings from former national security officials, former members of Congress from both parties, legal historians and former government ethics officials back the conflict-of-interest concerns identified by Democratic lawmakers.
Other public officials, including past presidents, have had “no trouble modifying their conduct to comply with the Constitution,” according to the brief from the former ethics officials. “In all of our experience as federal ethics officers, we have seen few financial disclosure reports containing a web of personal and business entanglements that raise as many serious ethics concerns as President Trump’s — and we have never seen a President go to such lengths to obscure his finances from Congress and the American people.”
A three-judge panel of Judges Thomas Griffith, Karen LeCraft Henderson and Tatel heard the case Monday.
The congressional case reached the appeals court after District Court Judge Emmet G. Sullivan issued a series of opinions siding with congressional Democrats and adopting a broad definition of emolument based on what he found to be “overwhelming evidence” from “over two hundred years of understanding the scope of the clause.”
In June, Sullivan cleared the way for lawmakers to issue 37 subpoenas seeking financial information, interviews and other records, including ones related to Trump Tower and his Mar-a-Lago Club in South Florida.
The appeals court intervened at Trump’s request in July, and directed Sullivan to reconsider allowing the president’s midstream appeal to consider the untested separation-of-powers issues at stake.
The other “emoluments” cases working through appeals courts concern Trump’s hospitality-industry competitors in New York and the attorneys general in Maryland and Virginia,
The attorneys general will argue the case set for Richmond in a lawsuit centered on the president’s hotel in downtown Washington.