Divided Court Hears Trump Emoluments Case: ‘We Are Up Here Winging It’

Divided Court Hears Trump Emoluments Case: ‘We Are Up Here Winging It’

RICHMOND, Va. — A federal appeals court in Virginia heard arguments Thursday about whether to revive a lawsuit accusing President Trump of violating the Constitution by profiting from his hotel near the White House, in a spirited session that indicated sharp divisions among the judges over the legal consequences of the president’s conduct.

The three-hour hearing in Richmond was the first time that a full federal appeals court has considered the so-called emoluments or anticorruption clauses of the Constitution. Mr. Trump is the first president to be sued for violating those clauses, and so far only lower courts or appellate panels have ruled on the three cases against him.

The 15-member court in Richmond met to consider whether a three-judge appellate panel had wrongly dismissed a lawsuit over the Trump International Hotel brought by the District of Columbia and the state of Maryland. Once one of the nation’s more conservative benches, the court is now almost evenly made up of appointees by Republican and Democratic presidents.

The emoluments clauses of the Constitution restrict the ability of federal officials to accept gifts or financial benefits from foreign or state governments. The local jurisdictions were trying to show that government officials who flock to the president’s hotel are showering him with illegal benefits and hurting hotels and convention centers in which Maryland and the District of Columbia have a financial interest.

They had been poised to begin evidence-gathering in the case when the judicial panel threw out the lawsuit in July, saying courts exist to resolve “real cases,” not manufactured ones.

Hashim M. Mooppan, a deputy assistant attorney general, told the appellate judges that they should let the case die. He said that without the express authorization of Congress, the president cannot be sued for violating the emoluments bans.

But a number of the justices suggested that the three-judge panel might have acted too hastily. That raises the possibility that the lawsuit might be revived — either so it can proceed at the lower-court level or, perhaps, so the appeals court has a chance to consider it on its merits.

Judge Pamela A. Harris, an appointee of former President Barack Obama, said the Justice Department was seeking “an incredibly drastic remedy” in demanding that the case be dismissed on an emergency basis.

Two other Obama appointees, Judge James A. Wynn Jr. and Judge Albert Diaz, both suggested that failure to enforce the emoluments clauses effectively places Mr. Trump above the law.

As in other federal cases, President Trump’s own caustic comments about the allegations against him were an issue. In October, Mr. Trump dismissed the emoluments clauses as “phony.” Judge Robert B. King, a President Bill Clinton appointee, said those comments revealed the president’s “personal disdain” for the constitutional restrictions.

Mr. Mooppan said that the president’s remarks were “either a tweet or an off-the-cuff statement.”

The court’s more conservative judges argued strenuously that reviving the lawsuit would recklessly plunge the court into uncharted territory during a politically fraught moment. Judge Paul V. Niemeyer, who was appointed by President George Bush and wrote the three-judge decision, said Mr. Trump “can be removed from office, voted out of office, but to sue the president is an unprecedented action.”

He also said that even if the plaintiffs succeeded in forcing the president to divorce himself from his hotel, foreign officials and government guests could still try to curry favor by booking rooms or events knowing that the Trump family would benefit.

“It’s not going to change a thing,” he said. “You are not removing the president from the equation.”

Judge J. Harvie Wilkinson III, who was appointed by President Ronald Reagan, said that the courts had no business trying to define what constituted an illegal emolument and how to punish a federal official who accepted one without any guidance from Congress.

“What is being asked here is just wholly unprecedented,” he said. “We have no history to guide us and no precedent to guide us.”

“We are up here winging it. We are making it up,” Judge Wilkinson said. “If this isn’t off the rails, I don’t know what is.”

If a check on the president is warranted, he said, it is up to Congress or to voters to provide it. He credited a public backlash with forcing the president last month to drop what Judge Wilkinson called a “terribly ill-advised” plan to hold next year’s Group of 7 economic summit meeting at his Florida resort. “There are other avenues besides this manufactured suit,” the judge said.

In a sign of the case’s significance, the hearing lasted an hour longer than scheduled, and every judge spoke. Karl A. Racine, the attorney general for the District of Columbia, said he hoped that by early next year, the appeals court would give the case a “big green light” to proceed under Judge Peter J. Messitte, the district court judge who was overseeing the lawsuit.

“Today, we thought, was a very good day for us,” said Brian E. Frosh, the attorney general for the state of Maryland.

Facing impeachment and a tough re-election campaign, the president may be wearying of the lawsuits and steady stream of criticism he has faced over the 263-room hotel. In late October, the Trump Organization announced it was seeking to sell its 60-year lease on the property, which is owned by the federal government.

Kitty Bennett contributed research.

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