In an opinion handed down yesterday, the U.S.D.C. for the District of Maryland (Messitte, J.) denied a Motion for Leave to Appeal (Interlocutory) and for a Stay Pending Appeal filed by President Trump. While the ruling deals with legal principles that are both narrow and very technical, it gives us a window into the approach to the emoluments questions (remember, there are two Constitutional emoluments provisions, both of which are at issue in the case) taken by the Court and Trump.
The Court summarized Trump’s definitional approach to the meaning of term “emolument” as follows:
The President insists here, just as he did in his original brief, that his interpretation of what an “emolument” is– based on his reading of text, his review of contemporaneous definitions of the term, his understanding of the purpose of the Clauses, his take on historical evidence, and executive branch precedent and practice—is one as to which substantial grounds of disagreement exist, presumably in the sense that fair minded jurists might reasonably reach contradictory conclusions. The Court finds this a dubious proposition. Even now it remains unclear, as it did in connection with the President’s original motion to dismiss, exactly how he came to his view of the meaning of “emolument.” What he said in his Motion to Dismiss and repeats now is that the President would have to receive payments for his services as President for the payments to qualify as prohibited “emoluments;” in other words, over and above the salary he receives for his services as President, the Federal government, and foreign and state governments would have to make specific payments to him (or possibly provide non-monetary benefits) for Presidential acts before they would be constitutionally impermissible. By every reasonable metric, this appears to describe what is tantamount to a bribe, so above all else the President’s definition of the term “emolument” is exceedingly strained. To be sure, it may be a difference of opinion, (“emoluments… of any nature whatsoever”), but, in candor, as much as anything it appears to be little more than a lawyerly construct to establish a “difference of opinion,” but not necessarily one as to which fair minded jurists might reach contradictory conclusions.
Slip op. at 11-12 (emphasis by the Court; internal citations omitted).
The Court made short shrift of Trump’s argument:
All this said, as the Court had occasion to point out in its earlier opinion, even accepting the President’s proposed definition of “emolument,” Plaintiffs have still plausibly stated a claim in this case. For instance, insofar as foreign governments have expressly stated in the media that they are patronizing the President’s hotel precisely because he is the President, and insofar as foreign governments such as Kuwait and Saudi Arabia have demonstrably done so, their payments could still constitute an “emolument” foursquare within the President’s definition of the word, especially if, what appears likely, the payments to his hotel are being made with an expectation of favorable treatment by the President in matters of foreign policy. As a result, even if the appellate court were to disagree with this Court’s definition of “emolument” and embrace the President’s, Plaintiffs’ claims in this case would still remain viable under the definition of “emolument” the President himself appears to embrace.
Slip op. at 15 (internal citations omitted).
Finally, the opinion shows that the Court is on to Trump’s game:
[T]here is genuine concern on the part of Plaintiffs, indeed the Court shares it, that if the President is permitted to appeal the Court’s decisions in piecemeal fashion, ultimate resolution of the case could be delayed significantly, perhaps for years, since it is quite likely the President would seek to appeal an adverse decision from the Fourth Circuit to the U.S. Supreme Court. That, as a matter of justice, cannot be countenanced. There is no substantial disagreement over the meaning of the term “emolument” in the sense that reasonable jurists, much less courts, would disagree, nor would resolution of that question in favor of the President on appeal be likely to materially advance the ultimate termination of the proceedings or otherwise streamline the proceedings in any material respect.
Slip op. at 15-16.