A federal appeals court on Thursday grappled over how to handle a lawsuit against President TrumpDonald John TrumpSenate gears up for battle over witnesses in impeachment trial Vulnerable Democrats tout legislative wins, not impeachment Trump appears to set personal record for tweets in a day MORE that alleges that he is violating the Constitution’s emoluments clauses.
The 15 judges on the 4th Circuit Court of Appeals appeared sharply divided over whether to advance a case from the D.C. and Maryland attorneys general accusing the president of illegally profiting off his hotels and other private businesses.
Judge J. Harvie Wilkinson, who was appointed to the circuit court by former President Reagan, expressed concern about the questions posed by the lawsuit, which is one of a trio advancing claims that have largely been untested by the courts since the country’s founding.
Wilkinson said that the emoluments case is the “weakest of the cases that are springing up like jimson weed against the presidency.”
“We’re up here making it up. We’re winging it,” Wilkinson said. “There’s no history that authorizes it. There’s no precedent that authorizes it. There’s no right conferred that authorizes it. There’s no remedy set forth that authorizes it. We are winging it.”
“If this is isn’t off the rails, then I don’t know what is,” he added.
Another judge, Clinton-appointee Robert King, though, criticized President Trump for dismissing the Foreign Emoluments Clause as “phony” earlier this year.
“He said there are phony emoluments clauses, and the president takes an oath to protect, preserve and defend the Constitution. He characterizes them as phony emoluments clauses,” King said.
“They were written in Philadelphia in 1787,” he added. “They have never been amended.”
Hashim Mooppan, a lawyer for the Department of Justice, which is seeking to get the emoluments cases against Trump dismissed, responded by saying that the president was not denying the validity of the constitutional provisions. Mooppan said Trump was rather questioning the claims against him.
“No one is disputing that the emoluments clauses exist, and no one is disputing that they are important,” Mooppan said. “Any fair characterization of what the president was saying is that these claims are phony because these claims are utterly without merit, which I do think is true.”
The full 4th Circuit — comprised of nine judges appointed by Democratic presidents and six by Republicans — is reviewing an earlier decision by a three-judge panel ruling that the attorneys general have no legal standing to bring the case.
The Constitution’s Foreign Emoluments Clause prohibits certain public officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without the consent of Congress. Another provision, known as the Domestic Emoluments Clause, prohibits the president from accepting any emoluments from any of the states.
Because the emoluments lawsuits are largely unprecedented, the courts have had to first decide who, if anyone, has legal standing to bring a suit against the president under the provisions. On Thursday, the court also struggled with how the case might play out if it were allowed to proceed.
Loren AliKhan, the D.C. solicitor general, told the court that there are a number of appropriate remedies to address what she sees as a violation of the Constitution. The “cleanest” course of action, she argued, would be to force the president to sell off his hotels.
The Justice Department is arguing, like it did in a similar case brought by Democratic lawmakers, that the president is immune from these lawsuits and that his conduct does not violate the Constitution’s clauses.
The court also grappled with the impact of a ruling for the plaintiffs, who could seek to have Trump divest himself of his assets.
“You’re penalizing him for holding office by making him divest his assets,” Mooppan told Judge James Wynn Jr., an Obama appointee, in one exchange.
“Not to be too forward about it but if someone told you that you could no longer be a federal judge unless you gave up all your money, I think most people would think that that is impairing your official actions,” Mooppan added.
The D.C. Circuit Court of Appeals also heard oral arguments this week in the Democratic lawmakers’ emoluments lawsuit, alleging that the president illegally deprived them of their role in deciding whether he can accept foreign emoluments.
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In September, the 2nd Circuit Court of Appeals ruled that another emoluments case against Trump brought by the group Citizens for Responsibility and Ethics in Washington could move forward.
Updated at 7:16 p.m.