It was Judge J. Harvie Wilkinson III who really got the airplane metaphors flying as he talked about how the federal courts should handle the Trump International Hotel.
Letting a legally unprecedented lawsuit seeking to rein in President Donald Trump’s business dealings proceed, Wilkinson said in a Richmond courtroom Thursday, would be like hopping on a plane with no idea where it would end up.
“We have no history to guide us,” Wilkinson said.
Lawyers pursing the case against the president said that plane would land somewhere better, where the U.S. Constitution’s previously obscure Emoluments Clause would serve as a check on presidents whose private business interests — like the Trump International Hotel in Washington — could allow foreign actors to buy access or favorable treatment.
Lawyers representing Trump said the plane would definitely crash.
The Richmond-based 4th U.S. Circuit Court of Appeals, they said, could mitigate any damage to the presidency by stepping in and making sure it never gets off the ground.
After several hours of questioning from a full complement of 15 judges, it was unclear Thursday if the appeals court would heed the president’s request to stop the lawsuit early rather than allowing it to proceed in a lower court. This summer, a three-judge appellate panel in the 4th Circuit granted a motion to dismiss the case. In Thursday’s en banc hearing, a broader group of judges were weighing whether to revisit that decision. Their official opinion will come later.
The novel case — filed in 2017 by Maryland Attorney General Brian Frosh and District of Columbia Attorney General Karl Racine — contends that Trump’s decision not to sever ties with his pre-White House empire has created an unfair business environment, particularly for other hospitality interests in the Washington region that compete with the Trump hotel.
If the case proceeds through the courts, it could allow the plaintiffs to subpoena Trump-affiliated companies or depose the president, revealing more information about how often delegations from foreign governments are booking stays at the hotel and who might be encouraging them to do so.
Trump’s lawyers contend president’s business arrangements are not a violation of the Emoluments Clause, which was designed to prevent federal officials from being corrupted by foreign powers. They’ve tried to have the case thrown out early on technical grounds, arguing Trump has presidential immunity against the claims and that Maryland and D.C. have no standing to sue because they can’t show they’ve been directly harmed.
During the judges’ questioning, Wilkinson, a Reagan appointee, was perhaps most direct about where he stands, saying allowing the lawsuit to stand would amount to an act of “judicial supremacy” over a question best resolved through congressional action or elections.
“I think that when partisan fevers grip the country, it is best sometimes for the courts to back off and say we don’t want to be part of it,” Wilkinson said.
But if the judicial branch can’t force a president to adhere to the Constitution, other judges asked, who can?
“It really goes to the question of: Is he above the law?,” said Judge James A. Wynn Jr., an Obama appointee.
Throughout the hearing, judges who seemed skeptical of the lawsuit’s merits repeatedly asked what remedy would satisfy the plaintiffs.
“I think the cleanest would be divestment from the hotel,” said Loren AliKhan, D.C.’s solicitor general.
Judge Paul V. Niemeyer, an appointee of George H.W. Bush, suggested Maryland and D.C. would gain nothing if Trump turned over his interest in the hotel to his sons, but it continued to bear the Trump name and dignitaries continued to stay there.
“It’s not going to change a thing,” Niemeyer said.
“While we might find that conduct unsatisfactory, the Constitution doesn’t speak to it,” AliKhan responded.
Justice Department lawyer Hashim Mooppan said the lawsuit effectively seeks to penalize Trump for holding public office. At one point, Wynn asked how the president’s official duties would be in any way constrained if he had to give up his stake in the hotel.
“If someone told you that you could no longer be a federal judge unless you gave up all your money,” Mooppan said, it would be seen as impairing official actions.
Judge Stephanie Thacker, an Obama appointee, disputed that comparison.
“It’s telling him he can’t use his federal judgeship to make money,” Thacker said.