Emoluments: A Sweeping Setback For Trump’s Foreign Business Dealings

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President Trump’s decision not to divest himself of his businesses, in particular his foreign holdings or holdings that derive income from foreign governments, was a fateful error that flew in the face of precedent, clean government and the Constitution. Now, a federal appeals court has held he cannot derive income from foreign governments that frequent his businesses.

The full U.S. Court of Appeals for the 4th Circuit, sitting en banc on Thursday, overruled a decision from a panel on the same court that prevented a case brought by Maryland and the District of Columbia from proceeding. The case alleged that Trump’s hotel business with foreign governments violates the emoluments clause, and the specific issue for the full 4th Circuit was whether to intervene to force the district court to allow an interlocutory appeal and thereby prevent the district court from proceeding with discovery (which would entail the investigation of Trump’s finances).

The 4th Circuit held that no, the case could proceed as the district court ordered. The majority held that dismissal of the entire action was not warranted because Maryland and D.C.’s argument that emoluments include “all profits and other benefits [accepted from a foreign or domestic government] that [the President] accepts through the businesses he owns” is plausible. In a stunning rebuke of the dissent, three judges wrote in a concurrence: “Without a doubt, a lawsuit brought by the State of Maryland and the District of Columbia against the President of the United States catches attention outside the walls of the courthouse. How then should the Court avoid the appearance of partiality when there are eyes upon it?” The judges answer their own question: “By applying the law and abstaining from grandiose screeds about partisan motives. Or, put another way—by doing its job. And that is exactly what the excellent majority opinion does.”

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