Yet since the first year of Donald Trump’s presidency, the Justice Department has defended him against three federal anti-corruption lawsuits filed in New York, D.C., and Maryland. These private suits highlight the profits Trump is reaping from government representatives from around the country and the world—for example, the embassy of Kuwait moved its annual National Day celebration to the Trump International Hotel starting in 2017—and allege that by refusing to step away from his business empire, Trump is benefiting from his office in violation of two constitutional provisions that forbid the president from accepting “emoluments” from either foreign dignitaries or U.S. federal and state governmental entities. (The foreign-emoluments clause bars federal officials, including the president, from accepting emoluments from foreign countries without Congress’s consent. The domestic-emoluments clause applies specifically to the president and forbids him from receiving emoluments other than his fixed salary from the federal or any state government while in office.)
Read: The Trump organization says it’s ‘not practical’ to comply with the emoluments clause
The emoluments cases are difficult for the plaintiffs to win, not because their interpretation of the clauses is wrong, but because getting that interpretation considered in court requires first showing they are the right people to bring the case. In legal parlance, the question is whether they “have standing” to allege an injury caused by the president’s businesses. That’s why in February, the U.S. Court of Appeals for the D.C. Circuit threw out a lawsuit brought by House and Senate Democrats challenging the president’s business dealings. The court ruled that only Congress as a body, not individual members, can assert an interest in regulating the president’s acceptance of foreign emoluments. Last July, three judges on the Fourth Circuit similarly dismissed another emoluments suit, brought by the District of Columbia and the state of Maryland, on standing grounds.
But earlier this month, a decision by the full 15-judge bench of the Fourth Circuit revived the Maryland case. The judges wrote narrowly, holding that the president has to wait for a final judgment from the district court before appealing its preliminary ruling that the plaintiffs have standing to sue him. In effect, however, it’s a momentous decision that allows the plaintiffs to continue their battle in the court below and puts the Fourth Circuit on the same general page as the Second Circuit, which back in September squarely held that the plaintiffs in that case, owners and operators in the hospitality business in New York City and D.C., had standing to sue the president.
As illustrated by the standing issue, in the Supreme Court showdown likely to come, all of the plaintiffs face technical hurdles that could prevent them from ever getting their main arguments heard. But the Justice Department faces a wholly different challenge—a problem of principle, not procedure. Defending Trump against the emolument suits is not easy, because doing so pits the Justice Department against itself.
