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A Constitutional Challenge To Trump's Decision To Hold On To His Business Interests Can Move Forward

A federal judge said the attorneys general of Maryland and the District of Columbia had standing to pursue claims that Trump's interest in the Trump International Hotel in Washington violates the US Constitution.

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A federal judge in Maryland on Wednesday denied President Donald Trump's bid to throw out a constitutional challenge to his decision to hold onto interests in his eponymous business empire.

US District Judge Peter Messitte ruled that the attorneys general of the District of Columbia and Maryland do have standing to pursue claims that Trump's ongoing financial ties to the Trump International Hotel in Washington, DC, violate the Foreign and Domestic Emoluments clauses of the US Constitution. He dismissed claims related to Trump Organization activities outside of Washington, however.

The Maryland case is one of three filed last year accusing Trump of violating the two emoluments clauses — provisions that prohibit federal officials from receiving “emoluments,” generally defined as payments or other financial benefits, from domestic or foreign government actors. A federal judge in New York dismissed one of the cases in December, finding that a government watchdog group, Citizens for Responsibility and Ethics in Washington (CREW), lacked standing. CREW is appealing that decision.

Messitte's decision is a win for Maryland and DC, but it isn't the end of arguments over whether the case can survive at this early stage of the litigation. The Trump administration and DC and Maryland will next get a chance to argue over how Messitte should interpret the meaning of the two emoluments clauses, and whether DC and Maryland's claims can survive based on that interpretation.

Justice Department spokesperson Kerri Kupec said in an email to BuzzFeed News that, "As we argued, we believe this case should be dismissed, and we will continue to defend the President in court.” White House press secretary Sarah Huckabee Sanders told reporters she "can't comment on ongoing litigation."

Maryland Attorney General Brian Frosh tweeted, "We won the first round!" In a statement, Frosh said the ruling "soundly rejects the Trump Administration’s argument that nobody can challenge the President’s illegal conduct." DC Attorney General Karl Racine said in a statement that they would "continue to seek an injunction to stop President Trump from flouting the Constitution’s original anti-corruption provisions."

We won the first round! Our case moves forward! Thanks to my colleague @AGKarlRacine and co-counsel @CREWcrew https://t.co/YsoA3uHdQa

CREW is also co-counsel with lawyers from Maryland and DC in the Maryland case. CREW chair Norm Eisen said in a statement to BuzzFeed News that, "This is a major step forward for the emoluments litigation. We look forward to now addressing the constitutional and other questions. As in other cases across the country, the president’s disregard for the rule of law is creating significant legal exposure. Among other things, the decision suggests that other states and businesses in proximity to other Trump enterprises around the country may also have standing."

Trump ceded control of the Trump Organization to his adult sons Donald Jr. and Eric Trump after he took office. But he did not divest from his businesses, including the Trump International Hotel, which opened in October 2016.

During arguments before Messitte on Jan. 25, lawyers for Maryland and DC highlighted the success of the DC hotel to date, arguing that Trump's ties to the business after he became president unfairly skewed the hospitality market to disfavor local businesses as well as venues that Maryland and DC had a stake in. They cited examples of US and foreign officials patronizing the hotel and its restaurant while also engaging with the administration.

Messitte found that Maryland and DC had standing to pursue these claims. He wrote that, although there are limits on states' ability to bring suits on behalf of their citizens — known as "parens patriae" actions — against the president in his official capacity, these claims could go forward because the case involved conduct outside of Trump's "official duties."

"It can hardly be gainsaid that a large number of Maryland and District of Columbia residents are being affected and will continue to be affected when foreign and state governments choose to stay, host events, or dine at the Hotel rather than at comparable Maryland or District of Columbia establishments, in whole or in substantial part simply because of the President’s association with it," Messitte wrote.

Maryland and DC also argued that they were placed in the difficult position of feeling forced to give the hotel special treatment or else risk losing favor with the administration to other states that were willing to patronize or otherwise accommodate his business.

Messitte found that Maryland and DC had adequately argued a harm to these types of "quasi-sovereign" interests with respect to the DC hotel. He noted one example cited by the plaintiffs of Maine Gov. Paul LePage's decision to stay at Trump's hotel last year while he was in Washington on official business. LePage later joined Trump for an announcement that the administration would review Obama-era national monument designations, a move that LePage supported.

"Leaving aside how Maine’s citizens may have felt about the propriety of their Governor living large at the Hotel while on official business in Washington, the fact that States other than Maryland or the District of Columbia (while, not a State) might patronize the Hotel while on official business in Washington rather clearly suggests that Maryland and the District of Columbia may very well feel themselves obliged, i.e., coerced, to patronize the Hotel in order to help them obtain federal favors," Messitte wrote.

In an interview with WGME on Wednesday, LePage called Messitte a "complete imbecile."

"I didn't realize that I could buy the president so cheap, a night in his hotel and he's in my back pocket,” LePage told the reporter. “The judge that did that is an imbecile. He's a complete imbecile." A spokesperson for LePage said in an email to BuzzFeed News that LePage "chooses hotels based upon several factors including price, availability and security," and that "any insinuation or speculation that a stay in a Trump hotel is made with an expectation or hope of some type of quid-pro-quo is false and irresponsible."

Messitte rejected similar arguments that Maryland and DC raised about quasi-sovereign interests related to Trump properties outside of Washington, such as Mar-a-Lago in Florida.

Messitte disagreed with the Justice Department's argument that it should be Congress's job to enforce the Foreign Emoluments Clause (the Domestic Emoluments Clause doesn't include an oversight role for Congress, the judge noted). The judge wrote that if Congress hadn't approved the receipt of an emolument by the president, the court had the authority to step in and review whether the president was complying with the law.

"The thrust of the President’s argument that only Congress can act is particularly concerning. Suppose a majority (simple? two-thirds?) of Congress (the House? the Senate? both?) is controlled by one party — that of the President. And suppose the Congress never undertakes to approve or disapprove the President’s receipt of such 'emoluments.' The President could continue to receive unlimited 'emoluments' from foreign and state governments without the least oversight and with absolute impunity," Messitte wrote in a footnote.

This is a developing story. Check back for updates.

Zoe Tillman is a legal reporter with BuzzFeed News and is based in Washington, DC.

Contact Zoe Tillman at zoe.tillman@buzzfeed.com.

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