‘This one’s a lemon’ vs. ‘Is he above the law?’: Judges spar over Trump emoluments case

RICHMOND, Va. — Democratic and Republican-appointed judges clashed sharply Thursday over a lawsuit claiming that President Donald Trump is violating the Constitution by profiting from the spending of foreign and state government officials at his luxury Washington hotel.

A quartet of lawyers argued for nearly three hours over highly complex legal issues spurred by the suit the District of Columbia and Maryland governments filed over two years ago, accusing Trump of ignoring clauses in the Constitution prohibiting federal officials from supplementing their salaries with “emoluments” from foreign powers or individual states.

However, the judges of the 4th U.S. Circuit Court of Appeals provided the real action Thursday through a series of pithy, blunt exchanges with one another over the implications of allowing the case to proceed. The case has pitted state and local government officials against the Justice Department, which has argued that Congress, not the courts, should be the one to establish parameters for the vague clause. Personal lawyers for Trump have also entered the fray.

During the unusual “en banc” session, which featured all 15 judges on the panel, Judge Harvie Wilkinson, a Reagan appointee, was by far the most vocal and emphatic, delivering a series of broadsides against the suit and warning of grave peril for the presidency if the litigation is allowed to continue.

“We’re treating this as if it’s some kind of run-of-the-mill case and it is not that. The judiciary is asserting injunctive power over the president of the United States,” Wilkinson declared. “What’s being asked here is just wholly unprecedented.”

Wilkinson contended that the meaning of the emoluments clauses is uncertain and that courts would be unwise to allow litigation to enforce them without Congress laying out some framework to consider such claims. He said the courts were being asked “to proceed alone to tie down the presidency in litigation.”

“That is an excellent summary of our argument, Judge Wilkinson,” Justice Department attorney Hashim Mooppan declared.

As Mooppan continued, Judge Albert Wynn Jr. interrupted. “There’s no question,” said Wynn, an Obama appointee.

That prompted Wilkinson to step in and ask that the DOJ lawyer be allowed to finish. “Could he answer my question?”

“I’m sorry,” Wynn replied. “If you heard a question, please answer it. … You said you agree with him. What is the answer to the question?”

Moments later, Wilkinson again unleashed on the litigation.

“I say, once again, this is an overextension of judicial supremacy over the office of the presidency. … We’re up here making it up. We’re winging it,” the judge exclaimed. “If this isn’t off the rails here, then I don’t know what is. There are other suits over congressional subpoenas that present closer questions, but this one’s a lemon. It’s the weakest of the cases that are springing up like jimsonweed against the presidency in this environment.”

Such prickly exchanges and pointed retorts continued through the morning session.

Wynn and several other Democratic appointed judges said that while Wilkinson’s approach sounded modest, it meant giving the president a license to violate the Constitution because there would be no legal recourse for even the most flagrant violations of the emoluments clauses.

“It really goes to the question of: Is he above the law?” Wynn said. “You can have interests that invite foreign dignitaries openly to come in and take 500 rooms or to offer Mar-a-Lago. … Nothing can be done, is that correct? My question is, is that correct?”

Judge Robert King, a Clinton appointee, jumped in to argue that this is not a situation where a president had a different interpretation of the law but is contending he’s faithfully following the Constitution. King noted that Trump made comments last month in which he appeared to call the emoluments provisions “phony.”

“Sitting in the White House, he said they are ‘phony’ emoluments clauses. And the president takes an oath to protect and preserve and defend the Constitution,” King said.

“Any fair characterization of what he said is he’s calling the claims here phony,” Mooppan said. “He’s not disputing the existence of the emoluments clauses.”

“He called them phony emoluments clauses,” King shouted. “Two clauses of the Constitution written in 1787.”

“I understand, Your Honor. It was either a tweet or an off-the-cuff statement,” the Justice Department lawyer replied.

Wilkinson insisted that kicking the case out of court would not prevent anything from being done about apparent emoluments abuses.

“There’s a court of public opinion by which something can be done. … The president wanted to hold a G7 convention in Doral,” the judge said, referring to Trump’s Doral resort in Florida. “People didn’t throw up their hands. … There was immense pressure brought against what was an overstep in using that particular piece of private property for public business. But that shows you that, yes, something can be done. Litigation is not the only way to getting something done.”

While no ruling was issued Thursday, the judges appeared to split fairly cleanly along partisan lines, with Democratic appointees favoring allowing the litigation to continue and Republican appointees inclined to shut it down. The 4^th Circuit’s active bench includes eight judges appointed by Democratic presidents, six appointed by Republicans, and one, Chief Judge Roger Gregory, whose pedigree is more complicated. After his confirmation was blocked, he reached the court via a recess appointment by President Bill Clinton. Gregory was later re-nominated and confirmed under President George W. Bush.

Despite the ideological clashes, the emoluments case may end up turning on technical legal issues. Civil suits in the federal courts are normally cannot be appealed until they reach a final ruling. Appeals can be taken midcase if a judge authorizes it, but the judge handling the D.C.-Maryland case declined to do so.

At one point, Mooppan argued that appeals courts remain free to step in midcase when District Court judges “totally screw up.”

“Counsel, is the standard you’re looking for the one you used before — totally screwed it up?” Judge Pamela Harris asked. “Because I read the District Court opinions with some care, and what I saw was a very reasoned exercise of discretion,” she said, adding that accepting the government’s position would make the appeals court a “roving commission” and “open the door very wide” to appeals at every juncture of a case.

Judge Diana Motz, a Clinton appointee, agreed. “You might not agree with it, but it’s no slapdash opinion,” she said.

The lengthy discussion of the procedural legal points seemed to irritate Wilkinson, who expressed frustration that his colleagues were getting bogged down in legal minutiae.

“We can debate the pros and cons of this wrinkle and that wrinkle,” he said. “The long-range fact effect of this is we are setting this whole business down a debilitating road of litigation that offends the most basic separation of powers principles. … You just want to keep the litigation grinding on and on and on.”

“Certainly, our intent is not to tie up the president in litigation,” State of Maryland lawyer Leah Tulin insisted.

Wilkinson also posed a series of policy arguments against strict enforcement of the emoluments clauses, fretting that it would discourage business people from taking up roles in government. But other judges said those considerations were well beyond what the appeals court had before it.

Wynn suggested his colleague was acting more like a TV pundit than a judge deciding discrete legal issues.

“You may have another motive. I don’t know what your motive is. I’m not going to impugn that to you,” he told Tulin. “We are not the news channels. We are not the political folks out there arguing about this case. We’re not Congress. We’re a court of law.”

Motz was particularly tough on Mooppan during the session, laughing at his arguments on at least five occasions. She also jumped in after he gestured at D.C. Solicitor General Loren AliKhan and referred to her informally as “she.”

“You mean, ‘my colleague...’ or ‘counsel?‘” Motz said.

“My colleague,” Moopann replied.

The emoluments case being argued Thursday had previously been dismissed by a conservative three-judge panel of the 4th Circuit in July. But in October the court announced the full bench of active judges would take up the case.

The D.C.-Maryland suit is one of three major cases charging Trump with emoluments clause violations.

A suit filed on behalf of New York-area hospitality business and workers was dismissed by a District Court judge in 2017, but revived by a three-judge appeals court panel in September of this year. Justice Department attorneys have asked the full bench of the 2nd Circuit to take up the case.

Another case filed by Democratic lawmakers in federal court in Washington, D.C., has survived efforts by Justice Department and Trump attorneys to toss it out. The D.C. Circuit heard an appeal in that suit on Monday.

Any or all of the cases could wind up at the Supreme Court in the coming months. But even if they are taken up by the high court, it seems unlikely they will be decided definitively before the election.

And all of the legal challenges face another potentially significant wrinkle: The Trump Organization announced last month it is seeking to sell its interest in the Trump International Hotel — a move that would likely render the D.C.-Maryland suit moot and potentially undermine the other legal challenges.