The Independent View: Emoluments Suit vs. Trump Personal as Well as Official

Attorneys General of Maryland and the District of Columbia on Friday Expanded their Lawsuit accusing President Trump of accepting Gifts from Foreign and State Governments, Suing him not only as President but in his Personal capacity as a Businessman. Legal Experts say the move takes the “Emoluments” Clauses of the Constitution into Uncharted Legal Waters, since it has been Interpreted as only applying to Presidents in their Official Capacity. “The conventional understanding is that once the president is sworn in … everything he does is official, so he doesn’t have a personal capacity any longer. That’s kind of the assumption, but that could be wrong,” said Mark Brown, a Constitutional Law Expert at Capital University Law School in Columbus, Ohio.

The Lawsuit, filed in Federal Court in Maryland, is one of several recent Cases challenging Trump’s ties to his Business Ventures and his Refusal to Divest from them. The Suits allege that Foreign Governments’ use of Trump’s Hotels and other Properties Violates the Constitution’s Emolument Clause, which Bans the President’s acceptance of Foreign Gifts and Money without Congress’ Permission for Each Gift or Money. The Clause has never been fully Tested in Federal Court and Trump’s Justice Department Attorneys have argued that Hotel Room Stays do not represent “Foreign Gifts.” But what about the use of the Hotel's Ballrooms for Foreign Country Events.?

The Interstate Emolument Clause deals with Profits from Interstate Business which does not have a Congress Approval process.

Last month, during a five-hour Hearing in a Maryland Courthouse, U.S. District Judge Peter Messitte went round and round on the issue of Official versus Individual capacity, actually suggesting that the Plaintiffs Amend their Lawsuit to include the President in his Personal Capacity. “They’re not talking about things he’s doing as president, they’re talking about something he’s doing benefiting from as a private owner of a business,” Messitte said in Court, noting that the Provision of Hotel Rooms has nothing to do with Trump’s role as President. “Are you saying it does? … Should he be sued in his official and private capacity?”

The move to Amend the Lawsuit also potentially Opens the doors to Trump’s Personal Lawyers to join the Case. “While we continue to believe that the complaint would be sufficient as to the president in his official capacity, the court’s questions at the hearing suggested that as an independent and alternate ground, it might be sound to proceed against the president in his personal capacity as well,” said Norman Eisen, Chairman of the Watchdog Group Citizens for Responsibility and Ethics in Washington, which is Co-Counsel on the Case.

Judge Messitte has yet to make a Decision on the Government’s Motion to Dismiss the Case. If Messitte allows the Case to Proceed, it would likely move on to Discovery. Some Legal Observers contend that getting to the Discovery Stage of the Litigation, which would shed significant light on Trump’s Opaque and Sprawling Business Empire, is the actual Goal of the Lawsuits.

Rob Marus, a Spokesman for the Office of the Attorney General for the District of Columbia, said the Case is about getting the President to Stop Violating the Constitution, not merely about getting to Discovery. According to Maryland Attorney General Brian Frosh: “This is the first time that anyone has had to sue a president for violating or nation’s original anti-corruption law — the emoluments clause. During the hearing on the motion to dismiss, the judge’s questions led us to the conclusion that it is advisable and perhaps necessary to sue Donald Trump as an individual. We took that step today.”

Late last year, a Judge in New York threw out one such Lawsuit filed by the Watchdog group Citizens for Responsibility and Ethics in Washington, saying Emoluments is an Issue that Congress should Address First. That Case was Appealed last week. A Third Federal Lawsuit has been filed against Trump on this Issue by nearly 200 Democratic Members of Congress.