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Abu Dhabi, UAEWednesday 19 December 2018

Judge hints at taking up Trump foreign payments case

Peter Messitte expressed scepticism about the defence of the president’s handling of his expansive business interests

The handling of the president's expansive business interests could be unconstitutional. Trump Hotel Collection
The handling of the president's expansive business interests could be unconstitutional. Trump Hotel Collection

A federal judge in Maryland hinted Thursday that he may take up a case questioning whether president Donald Trump’s business empire violates the ‘emoluments’ clause of the Constitution.

US District Judge Peter Messitte expressed scepticism about the government’s defence of the president’s handling of his expansive business interests. If the case is allowed to proceed, it could reveal much about Mr Trump’s business and personal finances, possibly forcing him to reveal tax and other financial information in the course of legal discovery.

Thursday’s five-hour hearing in a DC suburban courthouse dealt with the Trump administration’s motion to dismiss a case brought by the attorneys general of the District of Columbia and Maryland. The lawsuit is one of several recent cases challenging Trump’s ties to his business ventures, and his refusal to divest from them.

The legal cases have alleged that foreign governments’ use of the Trump International Hotel in Washington and other Trump Organization properties violates the Constitution’s emoluments clause, which bans the president’s acceptance of foreign gifts and money without Congress’ permission. The clause has never been fully tested in federal court and Mr Trump’s justice department attorneys have argued that hotel room stays do not represent “foreign gifts”.

Last month, Judge George Daniels of the southern district of New York dismissed a case brought by the left-leaning public policy group Citizens for Responsibility and Ethics in Washington, representing competing restaurateurs, hotel owners and others in the industry. Mr Daniels said the plaintiffs could not show they were specifically harmed by the president’s businesses and the issue needed to first be taken up by Congress. CREW is also co-counsel on the Maryland-DC case.

Mr Messitte said he had carefully read the prior ruling, but found “there’s very little analysis in his opinion.” Mr Messitte added: “I’m not really bound by the logic of his opinion at all at this point, with all respect to Judge Daniels.”

The Maryland and DC case, however, also adds a slightly different twist on another section of the emoluments clause that ensures that no US state is given extra favour by the president.

District of Columbia deputy solicitor general Loren AliKhan cited The Federalist Papers: No 73 by Alexander Hamilton, a document that addresses the domestic emoluments clause, which was created “to prevent states from corrupting the president’s integrity by appealing to his avarice.” Ms AliKahn cited the use of Mr Trump’s Washington hotel last year by representatives of the governments of Saudi Arabia, Bahrain and Kuwait as examples of possible emoluments.

In both the New York case and this one, Justice Department lawyers have argued that the plaintiffs did not suffer ‘certain’ or ‘imminent’ injury and therefore had no standing to sue, and that it is unconstitutional to sue the president in his official capacity.

Given the early stage of the case, Mr Messitte said, the plaintiffs weren't expected to have all the evidence of injury that might come with discovery, and the burden to get the case dismissed was on the government.