As I posted last November, President Trump is the defendant in three separate lawsuits involving his alleged violation of both the Foreign and Domestic Emoluments Causes. (For those of you who are new to this topic, I recommend reading my original post, which gives you the background on the emoluments issue, the three cases, and links to more and updated information). This post is an update on the case brought by the District of Columbia and the state of Maryland against Trump alleging a violation of both Emoluments Clauses.
On July 25 Judge Peter J. Messitte of the United States District Court for the District of Maryland issued a 52-page opinion as well as an order denying Trump’s motion “to dismiss Plaintiffs’ claims against the President in his official capacity that the President and the Trump International Hotel and all its appurtenances in
Washington, D.C. and any and all operations of the Trump Organization with
respect to the same have violated the Foreign and Domestic Emoluments
Clauses of the U.S. Constitution. Plaintiffs have stated viable causes of action
as to those claims” (Order at p.1). The court also ordered that within 21 days the parties file a joint motion suggesting the next steps in the case, particularly the time in which the president is to answer the complaint and the outlines of any proposed discovery. (Such pre-trial motion are often filed by each party, but the judge asked that this one be joint, meaning that the parties will have to agree on its contents, in the hope that it will move the case along). Finally, the judge deferred ruling on the president’s motion to dismiss the claims against him in his individual capacity. More on individual/official capacity (and discovery) in a bit.
Aside from holding that the suit can go forward (a decision that Trump could appeal), the court interpreted “emoluments” in a way which seems to be in keeping with what was really meant by the emoluments clauses and why the Framers put them in the Constitution. As Leah Litman observed:
DOJ attempted to distinguish “employment” or “personal service[s]” from the President’s financial stake in large hotels and restaurants.
As Chong [Jane Chong in an article on Lawfare] observed:
“This assertion—that payment for goods and business-related services is permissible but payment for employment and ‘personal services’ is not—means that a president can’t profit off his own brain or body when it comes to cash from foreign sources or U.S. government entities, but can, almost without limitation, profit off the brains and bodies of those he can afford to employ in his private capacity. It’s what you might call a constitutional free pass for super-rich presidents.”
The district court rejected DOJ’s argument and adopted a purposive test [a method of interpreting Constitutional provisions based upon the purposes of the provision] for what constitutes an emolument. An emolument, the court explained is a thing of value that realistically has “potential to unduly influence a public official.” That makes sense, as the court explained, of the emoluments clause text…and of its purposes to prevent corruption…The district court also held, in the alternative, that even under DOJ’s argument that an emolument was something given to the President “because of holding office,” the plaintiffs had stated a claim for relief,…
Judge Messitte spent a great deal of time going over the history and text of both emoluments clauses, and I would recommend the opinion (and its footnotes) if you really want to understand the legal claims and historical background. (It helps that the judge is a very clear writer).
Of all the three emoluments cases, this seems both the most likely to succeed (both in terms of substance and procedure) and the most likely to reach a decision first. (For example, the CREW lawsuit is now at the Second Circuit, just beginning briefing. Remember that the CREW complaint was dismissed for lack of standing. Judge Messitte addressed that in an earlier opinion, finding that DC and MD had standing to bring the suit).
Now for the add-ons:
Personal/Official Capacities: If you look at the first page of the opinion, you will see that Trump has been sued both in his personal and official capacities. What’s the difference? Individual capacity suits seek to impose personal liability on a government official for acts done under color of state law. (“Color of state law” is the act of a state (government) officer, regardless of whether or not the act is within the limits of his or her authority, and is considered an act under color of law if the officer purports to be conducting himself or herself in the course of official duties). Official capacity is a suit against a governmental entity for which the named person is an agent. Damages are awarded from the individual’s assets in an individual action and from public funds in the official case. These actions are often brought together, in case the judge allows a suit in one capacity and not in another, even though the complained-about actions are the same.
And that is true (for now) in the DC/MD case. The judge has allowed the suit to proceed against Trump is his official capacity, but has deferred a ruling on the individual capacity action. (By the way, DC and MD aren’t seeking money damages, only a declaration from the court that Trump is violating both emoluments clauses and an injunction to prevent him from doing so in the future. And it only applies to the Trump Hotel at the Old Post Office in DC).
Discovery: Discovery is really just what you think it would be. Each side in a lawsuit gets to discover (find out) what the other side’s case is all about and what evidence they want to introduce to prove it. Discovery comes in two forms. documentary and oral. Documentary is split between asking the other side to produce documents (in large cases that can be rooms full), interrogatories (posing written questions to the other side) and requests for admission (sending statements and asking the other side to admit that they are true). Oral discovery is focused on depositions, where one side gets to question, under oath, people who will or might be witnesses for the other side or people from the other side who know things about the case.
It’s all designed to eliminate trial by surprise, make the whole litigation run smoother (you can get a judgment without a trial based on evidence achieved through discovery) and to weed out evidence that shouldn’t come in under the Rules of Evidence.
Believe me, it’s a skill you can only learn by doing it, and it does win and lose cases.