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Trump Is Denied Full Court Rehearing in New York in Emoluments Case

Trump Emoluments Case Is Denied Full Court Rehearing in N.Y.

President Donald Trump won’t get a second chance to persuade a federal appeals court to throw out a suit claiming he’s violating the Constitution’s emoluments clauses by profiting from foreign governments and U.S. office holders while he’s in the White House.

A sharply divided Second Circuit Court of Appeals in Manhattan on Monday declined Trump’s bid for full-court reconsideration of a September ruling by a three-judge panel, 2-1, to reinstate the case by a restaurant group that claims it’s losing business to Trump’s properties. The court, in a two-sentence order, indicated that full-court, or “en banc,” rehearing of the appeal didn’t receive a majority vote of the 13 active judges on the court.

The appeals court took an unusually long time, 11 months, to decide on the request, all but guaranteeing that a court won’t begin considering the merits of whether Trump’s business dealings are legal before the election.

The case is one of several legal challenges the president has faced from critics who claim he’s using his office for his company’s benefit. Trump has been accused of a range of conflicts, including encouraging foreign dignitaries and U.S. service members to stay at his hotels.

The Justice Department didn’t immediately respond to an email seeking comment on the ruling.

In a dissent joined by two other judges, Circuit Judge Steven Menashi, a Trump appointee, said that the plaintiffs lack legal standing to bring the case. He characterized as “radical” the suggestion by the three-judge panel that a federal court could block the president’s businesses from selling services to foreign and government officials, order him to set up a blind trust for his holdings or require him to disclose his business dealings with government officials.

Judge José Cabranes, a Bill Clinton appointee, filed a separate opinion dissenting from the decision not to rehear the case. Judge Michael Park, who was appointed by Trump, didn’t take part in the decision.

And in an unusual move, two judges who aren’t on active status and therefore aren’t permitted to participate in decisions on whether to rehear cases en banc, filed “statements” arguing opposite sides.

The suit was originally filed by Citizens for Responsibility and Ethics in Washington, a government watchdog group that is no longer a plaintiff. The decision leaves the September ruling in place and will result in the case returning to the lower court, unless Trump seeks review from the U.S. Supreme Court.

In the September ruling, two of the three judges on the panel said the plaintiffs had alleged sufficient facts for the case to move forward. The judges rejected Trump’s claim that the plaintiffs lacked standing.

The appeals court said the plaintiffs, Restaurant Opportunities Centers United, and Eric Goode, a New York owner of high-end hotels and restaurants, made a plausible claim that “the president’s ownership of hospitality businesses that compete with them will induce government patrons of the hospitality industry to favor Trump businesses over those of the plaintiffs so as to secure favorable governmental action from the president and executive branch.”

A lower-court judge had dismissed the lawsuit in December 2017.

The case is Citizens for Responsibility and Ethics in Washington v. Trump, 18-00474, Second U.S. Circuit Court of Appeals (Manhattan).

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