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Thursday, July 9, 2020

Trump poised to run out political clock on emoluments suits

A key lawsuit over spending by foreign entities at President Donald Trump’s businesses appears likely to remain on hold until the fall, effectively blocking what appeared to be the best vehicle for the president's critics to demand details of such spending in advance of the November election.

A federal appeals court Thursday extended a stay on fact-finding in the lawsuit so the Justice Department can ask the Supreme Court to order dismissal of the suit, filed in 2017 by the State of Maryland and the Washington, D.C., government.

The brief order from the Richmond-based 4th Circuit Court of Appeals was released Thursday morning as the Supreme Court released higher-profile rulings in unrelated cases involving subpoenas for Trump’s tax returns and financial records.

The appeals court voted, 14-1, to grant the Justice Department’s motion to stay the suit brought by D.C. and Maryland, which accuses Trump of violating the Constitution’s emoluments clauses by accepting funds from foreign and state governments seeking to curry favor with the president by patronizing his luxury hotel at the Old Post Office building in Washington.

The sole judge who indicated he would allow the lawsuit to proceed to discovery now was James Wynn Jr., an Obama appointee.

Wynn did not explain his reasoning, but he wrote an impassioned opinion rejecting the stance and caustic language of the Republican-appointed dissenters after the court bitterly divided along ideological lines in the case last May. He accused his dissenting colleagues of “a disappointing display of judicial immodesty” and a “naked” defiance of precedent and procedure.

The Justice Department and private attorneys for Trump have both indicated plans to ask the Supreme Court to overturn the 4th Circuit’s en banc ruling rejecting the president’s bids to order dismissal of the suit. That 9-6 decision reversed an earlier ruling in which a unanimous three-judge panel of Republican appointees ordered an end to the suit.

Thursday’s order from the Richmond-based appeals court suggests that even if Trump lawyers ultimately fail in their attempts to stymie the emoluments litigation, they will have scored a political victory for the president by bottling up the cases for most of his current term.

Petitions asking the Supreme Court to review the Maryland and D.C.-led case are not due until mid-August. That means the justices are unlikely to make any decision before the fall. Even if the justices decline to step in, the schedule makes it all but impossible for lawyers for the state and the city to proceed with subpoenas in advance of the Nov. 3 election.

In a joint statement Thursday, Maryland Attorney General Brian Frosh and D.C. Attorney General Karl Racine complained about the continued delays in the case, but did not explicitly mention that the suit — filed in June 2017 — now appears poised to remain on hold through Election Day.

“We are disappointed that we will not be able to resume discovery immediately because of President Trump’s continued delay tactics,” Frosh and Racine said. “We want to get to the truth about President Trump’s constitutional violations and that is what the President is attempting to prevent. We are prepared to defend the Fourth Circuit’s ruling and the uncontroversial principles of law it on which it relies, and we believe that the Constitution will ultimately prevail.”

Lawyers for Trump did not immediately respond to requests for comment on the order extending the stay in the case.

The D.C. and Maryland suit, which contends that unlawful competition from Trump’s hotel is affecting government-run convention centers, is one of three serious cases charging the president with emoluments-clause violations.

A suit filed in New York on behalf of restaurant owners and hospitality industry workers was dismissed by a district court judge, but ordered reinstated by a 2nd Circuit appeals court panel last year. The Justice Department asked the full bench of that court to take up the case last October, but no decision on that petition has been announced.

A third emoluments-focused suit against Trump, filed by Democratic senators and House members, was thrown out by the D.C. Circuit in February. That appeals court ruled that the lawmakers had no standing to proceed individually.

On Monday, the lawmakers formally asked the Supreme Court to take up that case, but with the justices heading into their summer recess, no decision from them on whether to hear it is expected until the fall.

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