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Federal appeals court revives emoluments lawsuit against Trump

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WASHINGTON — A federal appeals court in Virginia on Thursday revived a lawsuit accusing President Donald Trump of violating the Constitution by profiting from his Washington hotel, a decision that will most likely lead the Justice Department to appeal to the Supreme Court to keep the plaintiffs from gathering evidence in the case.

“We recognize that the president is no ordinary petitioner, and we accord him great deference as the head of the executive branch,” the majority opinion from the 4th U.S. Circuit Court of Appeals said. “But Congress and the Supreme Court have severely limited our ability to grant the extraordinary relief the president seeks.”

The 15-member appeals court in Richmond met in December to consider whether a three-judge appellate panel had wrongly dismissed the lawsuit over the Trump International Hotel brought by the District of Columbia and the state of Maryland. The local jurisdictions were about to begin evidence gathering when the panel threw out the case.

The Justice Department asked the full appeals court to either uphold the panel’s ruling or allow the department to appeal the lower court judge’s procedural rulings against the president, an emergency form of relief that is rarely allowed when a case is in midstream.

The attorneys general for the District of Columbia and Maryland are arguing that Trump’s interest in the hotel violates the Constitution’s bans on accepting benefits or “emoluments” from state or foreign governments. Government officials from Maine to Saudi Arabia have patronized the 263-room luxury property.

The local jurisdictions claim they have standing to sue because the Trump hotel competes with hotels and convention centers in their areas.

The Justice Department contends that the president cannot be sued for violating the emoluments bans without the express authorization of Congress and that the plaintiffs want to engage in a fishing expedition for documents for political reasons.

The appeals court split 9-6 over the decision. The two dissenting opinions and one concurring opinion revealed a wide gap between the judges. Eight of the nine judges who favored allowing the lawsuit to go forward were appointed by Democratic presidents. The ninth, Chief Judge Roger Gregory, was a recess appointment by President Bill Clinton and then was reappointed by President George W. Bush. All those in opposition were appointed by Republican presidents.

Writing for the majority, Judge Diana Gribbon Motz, who was appointed by Clinton, said Trump was asking for a drastic form of emergency relief on the grounds that the lower court judge had abused his discretion and committed serious legal errors.

But she said that Judge Peter Messitte of the U.S. District Court in Greenbelt, Maryland, had issued detailed written opinions, had applied the correct legal standards and had not acted arbitrarily. So the appeals court had no authority, she said, to halt the case.

In a dissenting opinion also signed by five other judges, Judge J. Harvie Wilkinson, who was appointed by President Ronald Reagan, said the court was allowing itself to be used as a political tool to harass the president.

“Can we not see the political cloak we are asked to don?” he wrote. “No federal court has ever allowed a party to sue the president under the domestic emoluments clause.”

In yet another opinion, four judges in the majority fired back.

“The public’s confidence and trust in the integrity of the judiciary suffer greatly when judges who disagree with their colleagues’ view of the law accuse those colleagues of abandoning their constitutional oath of office,” wrote Judge James Wynn, who was appointed by President Barack Obama.

Brianna Herlihy, a Justice Department spokeswoman, said the department “intends to seek further review in the Supreme Court.” Legal experts said the department would most likely request an administrative stay of the case while it prepared its appeal.

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