Trump Doesn’t Think Emoluments Clause Is Phony, U.S. Tells Court

(Bloomberg) -- Though President Donald Trump called the U.S. Constitution’s emoluments clauses “phony” in October, a Justice Department lawyer tried to reassure a federal appeals court that the president doesn’t really believe that.

“No one is denying the clauses exist or that they’re important,” department lawyer Hashim Mooppan said Thursday at arguments before a 15-judge appellate panel in Richmond, Virginia, that is considering one of three lawsuits accusing Trump of flouting the constitution’s prohibition on presidents receiving things of value, or emoluments, from foreign governments.

The judges, who heard nearly three hours of arguments Thursday, seemed divided on the issue of whether Trump can be sued over his ownership of properties including a D.C. hotel that has been patronized by the governments of Saudi Arabia and Kuwait, among others. The lawsuit was brought by the Democratic attorneys general of Maryland and the District of Columbia, who claim Trump’s actions hurt competing businesses.

A three-judge panel of the same Richmond-based appeals court threw out the lawsuit earlier this year, but the court made the rare decision to have the full panel of judges rehear the case. Mooppan appeared on the president’s behalf.

U.S. Circuit Judge Robert King, appointed by President Bill Clinton, put the lawyer on the spot by noting that Trump had referred to “this phony emoluments clause” during an Oct. 21 cabinet meeting.

The president had been defending his decision to host the next G-7 summit at his golf resort in Doral, Florida, which he reversed days earlier in the face of withering criticism from both Republicans and Democrats. In the same comments, Trump also claimed George Washington ran a business while in office and suggested without evidence Barack Obama might have been negotiating deals with his book publisher and Netflix from inside the White House.

Mooppan claimed Trump had only meant the allegations in the emoluments lawsuits were phony.

The Richmond panel included eight judges nominated to the bench by Democratic presidents, six selected by Republicans -- three by Trump himself. Chief Judge Roger Gregory was a recess appointment of Democrat Bill Clinton, whose nomination was later ratified and confirmed by Republican George W. Bush.

U.S. Circuit Judge Harvie Wilkinson, a Ronald Reagan appointee, proved Trump’s most ardent defender, and his sharp questions for the plaintiffs dominated much of the hearing. He pressed D.C. Solicitor General Loren AliKhan on how she could claim the president was violating the Constitution when Congress had not included any emoluments offenses in its articles of impeachment.

“We’re treating this as if it’s some ordinary, run-of-the-mill case,” Wilkinson said. “It is not that.”

AliKhan responded that D.C. and Maryland were suing on behalf of competing businesses, a group whom another U.S. appeals court in New York ruled three months had standing to sue the president for emoluments clauses violations.

A third emoluments case is before the federal appeals court in Washington. That lawsuit, filed by 215 Democratic members of Congress, requests an order compelling the president to seek legislative permission to retain any benefits flowing to his businesses from foreign governments.

Mooppan also appeared before the D.C. court on Monday, asking it to throw out the case.

Neither the Richmond or D.C. courts has indicated when it will issue a ruling.

The cases are In Re Donald J. Trump, 18-2486, U.S. Court of Appeals, 4th Circuit (Richmond, Virginia) and Blumenthal v. Trump, 19-5237, U.S. Court of Appeals, District of Columbia Circuit (Washington).

©2019 Bloomberg L.P.

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