WASHINGTON — This week judges in the District of Columbia and Richmond, Virginia, heard the latest round of arguments in two potentially landmark cases in which Democrats allege that President Trump’s business dealings violate the Constitution.
Both cases, happening in the shadow of the high-voltage impeachment hearings, hinge on conduct that has mainly taken place at one property: the president’s glitzy, 263-room D.C. hotel.
The hotel has booked big business from diplomats and foreign leaders, in potential violation of the Constitution’s foreign “emoluments” clause, which bars the president from accepting gifts or payments from foreign or state governments.
The property is also leased from the federal government, which Democrats have repeatedly raised as a problem in court arguments.
Now however, Trump’s company plans to sell its lease of the hotel. What then? With both sides in the cases having just completed their latest arguments, and bidders beginning to consider the value of the hotel, we look at what’s next in the emolument battles.
1. Will the emoluments cases proceed if Trump sells the D.C. hotel?
One of the cases would likely end. A suit brought by the attorneys general of D.C. and Maryland deals only with allegations around the D.C. hotel, with the plaintiffs arguing other hotels in the area are unfairly disadvantaged because they say diplomats, governors and other government leaders book the Trump hotel to curry favor with the president.
If the Trumps sell the property — so long as it isn’t to a sovereign wealth fund or maybe a state pension plan — all that goes away. “We’re just saying that the courts should stop him from violating the emoluments clauses,” Maryland Attorney General Brian Frosh said after the arguments in Richmond on Thursday. Once that happens, whether by sale or court action, he and Racine would likely end their suit.
Alternatively, Trump could give or sell his stake in the hotel to one of his adult sons or daughters, as one of the judges suggested Thursday. That, too, would probably end the D.C.-Maryland case. Two other cases, one brought by 200 congressional Democrats and another by business owners in New York, would likely continue, although they could be weakened.
So long as they aren’t resolved ahead of time, all of the cases would likely be moot if Trump loses the 2020 election.
2. Are the Trumps selling the D.C. hotel because of emoluments or for some other reason?
The specifics behind the Trump family’s plans to unload the property — which they spent an estimated $210 million to develop and which Ivanka Trump hoped to one day pass down to her children — are not fully known, but irritation at the lawsuits appears to be a factor. In announcing their plans to try selling the hotel lease, Donald Trump Jr., who is running the company with his brother Eric while their father is in office, cited the lawsuits.
None of the cases have neared a point where a judge might have ordered the president to change his conduct however, and it’s worth considering whether there may be financial reasons as well.
The Trump brothers announced the planned sale on the first day they are permitted — three years from when the hotel opened — according to their lease terms with the federal government. That timeline, and the hotel’s struggling occupancy, suggest financial considerations might have driven the decision as much as the courts or politics.
3. Why are the courts taking so long?
For the Democrats who are behind the suits, a not-so-secret goal has been to expose private financial information about Trump and his business, and to learn more details about the extent of foreign and state government spending through the president’s private entities. The odds of that happening in one of the emoluments cases before the election, given the steps still remaining in the cases, are now slim to none (although House committees and New York prosecutors are also seeking Trump’s tax information in other cases).
As a legal matter, the emoluments cases are breaking new ground with every ruling, because no court until now has tried to even define an emolument, much less determine what should happen if the president accepts one. The lawsuits raise myriad constitutional questions and as Judge James Wynn Jr. said Thursday, whatever decision they make will affect every future president.
Given the novel legal work involved, the appeals courts are moving relatively swiftly by court standards. In the congressional case, the appeals court got involved in July after a ruling from U.S. District Judge Emmet Sullivan, and scheduled oral argument for December. In the D.C.-Maryland case, the appeals court reviewed the case sitting with a full panel of 15 judges five months after it was dismissed by an initial three-judge panel.
4. Why is the Justice Department defending Trump?
Some readers have questioned why taxpayer dollars are being spent to defend the president against allegations that he is using taxpayer dollars to enrich himself. Critics of Attorney General William Barr have also wondered whether the Justice Department is defending Trump as part of what they see as Barr’s deference to the president.
That’s not the reason: This the Justice Department’s role. DOJ lawyers have long defended presidents when they are sued in their official capacity. Here, there would not be an alleged emoluments violation if not for Trump’s position as president.
In contrast, the Justice Department is not representing Trump in a different set of cases, in which the president has sued to block subpoenas — from Congress and New York prosecutors — for his private tax and financial records. In those cases, which have reached the Supreme Court, Trump is being represented by a team of personal attorneys.
5. What will happen to Trump if the courts rule against him?
No one knows, because no court has ever made a final emoluments clause judgment. As Judge J. Harvie Wilkinson, a critic of the lawsuits, said in court Thursday, “there’s no history that authorizes it. There’s no precedent that authorizes it.”
That does not mean the cases have had no effect. The plaintiffs have had an impact simply by injecting the once-obscure ’emoluments’ term into public discourse and making personal enrichment a consideration for House leadership when creating articles of impeachment, even though it wasn’t ultimately included.
There is some evidence Trump has reined in his behavior as a result of the cases. After Trump was forced to reverse course on plans to host the G-7 summit at his Doral golf course, the president blasted critics and their “phony emoluments clause.”
Regardless of how the appeals courts rule, the cases seem bound for the Supreme Court, which could provide one side or the other with a high-profile victory. Unless Trump sells his hotel or leaves office first.