By Jeff Barker / The Baltimore Sun
BALTIMORE —Dozens of subpoenas were issued Tuesday to businesses affiliated with President Donald Trump and others in a lawsuit by Maryland and the District of Columbia that alleges the president violated a constitutional prohibition on profiting from his post by doing business with foreign governments.
Among those receiving subpoenas were 13 Trump organizations, including The Trump Organization Inc., Trump International Hotels Management LLC, Trump Old Post Office LLC and The Donald J. Trump Revocable Trust.
The subpoenas were issued after a federal judge ruled Monday, over the objections of U.S. Justice Department lawyers, that the case’s discovery phase could proceed. Maryland Attorney General Brian Frosh, who filed the case in 2017 with D.C. Attorney General Karl Racine, called the decision “a huge step forward in our emoluments case.”
The case centers on foreign dignitaries paying to stay at the Trump International Hotel in Washington. Frosh and Racine say Trump’s ownership of a business that accepts money from foreign governments violates the U.S. Constitution’s emoluments clause.
Also subpoenaed were the federal departments of Agriculture, Commerce, Defense and the Treasury, as well as the U.S. General Services Administration — agencies that may have patronized the luxury hotel, which hosts meetings and events.
Frosh said Tuesday that the case is a reaction to unprecedented behavior by Trump.
“There has never been a president who has ever walked this close to the line,” the attorney general said in an interview.
Maryland and the District are seeking an injunction, he said, prohibiting future violations of the emoluments clause and requiring Trump “to put the people’s interest first.”
The White House declined comment, said spokesman Judd Deere. The Justice Department, which is representing Trump, also would not comment.
A spokesperson for the Trump Organization — which oversees hotels and other business interests — said in an email that last February it “voluntarily donated to the US Treasury all profits identified as being from foreign government patronage at our hotels and similar businesses. We intend to make a similar contribution in 2019.”
Frosh said it is possible he could seek the tax returns of Trump, who has declined to make them public. The president’s stance is a break from tradition, but violates no laws.
“We’re not ruling that out,” Frosh said. “In this first round of discovery, we want to get what is absolutely essential to our case. We think we can get it perhaps without the tax returns.”
The Justice Department has argued that the emoluments clause is being applied too broadly in the case and should not apply to the president’s business interests. The department has also challenged the suit by asserting that the plaintiffs lack standing because they could not clearly show how their residents had been harmed by the payments. But U.S. District Judge Peter Messitte rejected that argument in declining to dismiss the case in March.
The subpoenas are designed to solicit information to show that commercial interests in Maryland and the District — such as competing hotels — could be harmed by any advantage the Trump hotel enjoys through its association with the president.
Eighteen entities said to compete with the Trump hotel were also subpoenaed.
“Today’s subpoenas focus on answering three questions: which foreign and domestic governments are paying the Trump International Hotel, where is that money going, and how is the Trump hotel affecting the hospitality industry in the District of Columbia and Maryland,” Frosh said in a statement. “We’re seeking records of those payments through subpoenas to Trump business entities, as well as from federal agencies and state governments,” Frosh said. “We are also seeking information proving that hotel revenues are flowing to the president through his affiliated entities.”
Frosh said subpoenas directed to rival hotels, restaurants and other venues “seek to illuminate the unfair nature of that competition.”
Organizations can be cited for contempt for ignoring subpoenas.
University of Richmond law professor Carl Tobias said Trump’s lawyers “probably can delay by seeking stays” from Messitte, the 4th U.S. Circuit Court of Appeals or the Supreme Court.
“They also may claim executive privilege and that it is too onerous,” Tobias said. But he said a significant case — Paula Jones’ sexual harassment suit against former President Bill Clinton — established that the president is not immune from a civil suit and that plaintiffs can get “reasonable discovery.”
Since Trump’s election, Messitte said in a ruling last summer, “a number of foreign governments or their instrumentalities have patronized or have expressed a definite intention to patronize the hotel, some of which have indicated that they are doing so precisely because of the president’s association with it.”
At least one state — Maine — also patronized the hotel. Its governor and others visited the president and other officials in 2017. Maine was included on the list of subpoenas provided by Frosh.
Messitte issued an order Monday beginning the case’s discovery phase. In discovery, each side can request that the other answer specific questions or produce documents.
The framers of the Constitution adopted the emoluments clause out of concern that foreign heads of state could exert influence over the president or other federal officials.
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