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(Bloomberg) — A panel of federal appeals judges was openly skeptical of two Democratic attorneys general challenging President Donald Trump’s ability to make money from foreign and domestic government visitors at his luxury hotel in Washington.
Opposition to the president might actually help drive up business at other local hotels because his detractors wouldn’t want to stay in an establishment bearing his name, U.S. Circuit Court Judge Dennis Shedd said at a sometimes contentious two-hour hearing in Richmond, Virginia.
The judges, all appointees of Republican presidents, repeatedly pressed and interrupted lawyers representing the District of Columbia and Maryland, who claim the president is violating the emoluments clauses of the Constitution, which prohibit him from receiving benefits from foreign governments without permission from Congress and state and local governments. Trump’s lawyers want the lawsuit dismissed.
When District of Columbia Solicitor General Loren AliKhan rose to address the court, the judges focused on what it was the attorneys general wanted from their lawsuit, beyond merely an order compelling the president to abide by the constitutional restrictions.
She said the goal was to obtain a court ruling that Trump had violated the constitution, prompting Shedd to speculate whether such a ruling would become a basis for impeaching the president.
The 2017 case is one of three such lawsuits challenging the president’s ability to profit from his private business holdings while occupying the nation’s highest political office. At the heart of the joint Maryland/DC dispute is the Trump International Hotel only blocks from the White House, which has become a magnet for foreign dignitaries, state government officials and lobbyists.
Justice Department lawyers assert the president can’t be sued under the emoluments clause for things he does as a private businessman. When the attorneys general added claims against Trump as an ordinary citizen, his lawyers said that wouldn’t fly either because the prohibition on emoluments applies only to things the president does in his official capacity.
Those claims also didn’t go unchallenged.
"Somebody has to be there to hold him accountable," Shedd said. "Where’s the check on the president?"
Shedd was appointed to the appellate bench by President George W. Bush in 2001. The other members of the panel were Paul V. Niemeyer, who was appointed by George H.W. Bush in 1990 and Trump-appointee Arthur Marvin Quattlebaum Jr.
Justice Department lawyer Hashim Mooppan asserted that the president, by virtue of his singular position under the U.S. Constitution, is immune from the type of accountability sought in the lawsuit.
"There is no authority to sue directly the president of the United States in his official capacity," he told the panel.
The president’s businesses reported a profit of $191,538 attributable to foreign governments in 2018, a 26 percent increase over the prior year. The Trump Organization last month said it donated an equivalent sum to the Treasury.
On the eve of taking office, Trump said he resigned from all his businesses and put them in a trust managed by his son Donald Jr. Eric Trump is listed as an adviser for the trust. Whether that shift of business holdings — which includes about 500 entities — puts their foreign and domestic government-derived revenue far enough from Trump’s reach as to not violate the Constitution’s prohibition on presidents receiving things of value, or so-called emoluments, is another factor the court may have to consider.
U.S. District Judge Peter Messitte in Greenbelt, Maryland, twice rejected Justice Department requests he throw out the case and then declined to grant the government permission to appeal. But Trump went to the appeals court anyway, and it put the case on hold until it ruled.
After the hearing, Maryland Attorney General Brian Frosh accused the president of "trying to negotiate the terms of the Constitution.” Standing nearby, D.C. Attorney General Karl Racine added that even after President Jimmy Carter put his peanut farm into a blind trust when he took office in 1977, there was still an investigation to determine if he’d truly parted with the business.
"So this is not new," Racine said.
The cases are In Re Donald J Trump, 18-2486, U.S. Court of Appeals, Fourth Circuit (Richmond) and District of Columbia v. Trump, 18-2488, U.S. Court of Appeals, Fourth Circuit (Richmond).
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