President Donald Trump managed to defeat the first lawsuit challenging his receipt of business profits while in office, but knocking out the second case over his alleged violations of the Constitution's emoluments clauses may not be so easy.
As a daylong hearing on that second suit kicked off in a Maryland courtroom Thursday, U.S. District Court Judge Peter Messitte repeatedly indicated he wasn't persuaded by aspects of a ruling a fellow judge in New York City issued last month dismissing a high-profile case over Trump's refusal to divest his business holdings.
Messitte said he thought U.S. District Court Judge George Daniels was too quick to cast aside arguments that competitors to Trump's businesses have legal standing to challenge benefits he's receiving from his hotels, buildings and other ventures.
"He just said that in a sentence. There was no analysis at all," Messitte said after Justice Department attorney Brett Shumate invokved Daniels' opinion. "There's very little analysis in his declarations....I'm not really bound by even the logic at this point, with all respect to Judge Daniels."
A short time later, Messitte took another swipe at Daniels' decision a short time later suggesting it won't be of much benefit to Trump in the suit filed last June by the State of Maryland and the District of Columbia. Both Messitte and Daniels are appointees of President Bill Clinton.
In the suit filed in suburban Greenbelt, D.C. and Maryland argue that they're being injured in various ways, including through unfair competition from the Trump International Hotel with convention centers in Washington, Baltimore and Bethesda, as well as the MGM Casino at National Harbor. Maryland also says it's losing tax revenue when the Trump hotel draws room and event bookings from private businesses in the state.
"Our hospitality sectors cannot offer clients the the same opportunities to influence the president," Maryland Solicitor General Steven Sullivan said.
Shumate repeatedly called "speculative" D.C. and Maryland's claims that they're facing future harm from business being diverted to the Trump hotel. "They haven't alleged any specific loss of business," he said.
However, Messitte jumped in to note that the legal issue at the moment isn't whether D.C. and Maryland have proven their case, but whether the allegations are substantial enough for the case to proceed to the discovery stage, which could involve a detailed examination of the Trump hotel's financial records and those of other businesses.
"Wouldn't the standard be whether they plausibly complete?…it’s a matter of degree," the judge said. "You have diplomats from several Arab countries who have declared that they are taking their business to the Trump International Hotel…in order to curry favor with the president.... president….Do you need a number on that?"
Messitte also raised the fact that D.C. recently reduced the tax assessment on the Trump hotel. Shumate noted that a D.C. official was quoted as saying the decision was made on the merits, but the judge suggested D.C. lawyers were still free to argue the decision was improper or was made under pressure related to Trump being president.
"You want [the claim] to go out as a matter of law—lock stock and barrel. I’m not sure we’re there," the judge said.
However, Shumate said repeatedly that Supreme Court precedent mandates that the states show that their injuries are "certainly impending."
"They don’t get to do a fishing expedition of discovery with the president’s businesses to try to meet the burden," the Justice Department attorney said.
The suit brought by D.C. and Maryland complains that Trump is violating two separate constitutional clauses: one that prohibits a president from receiving emoluments from individual states and another that prohibits federal officials from receiving gifts or other payment from foreign nations, absent approval from Congress.
D.C. Deputy Solicitor General Loren AliKhan argued that D.C. and Maryland are being disadvantaged by actions officials in Florida have taken to resolve disputes related to Trump's Mar-a-Lago resort and by decisions state officials like Maine's Governor Paul LePage have made to stay at Trump's D.C. hotel. The Trump administration later eased logging restrictions Maine had objected to.
"We think the Maine example does suggest the president is giving special favors to states that are tendering emoluments," AliKhan said.
The New York suit was filed by the watchdog group, Citizens for Responsibility and Ethics, in Washington, along with some local hospitality businesses and employees. No appeal has yet been filed of Daniels' decision.
A third emoluments suit brought by more than 200 Democratic members of the House and Senate is pending in federal court in D.C. and has yet to see any substantive action.
While Messitte seemed inclined to allow the case before him to proceed, the judge repeatedly expressed concern that the suit names Trump in his official capacity as president, even though the complaints revolve around his business dealings. The judge said he might give D.C. and Maryland the chance to amend their suit to name Trump personally, something AliKhan said they would do but don't think is necessary.