The Justice Department asked an appeals court Dec. 17 to halt an anti-corruption lawsuit against President Donald Trump before tax returns and financial documents from Trump-connected businesses and people have to be provided under subpoena. Thirty-eight subpoenas have been sent so far to Trump associates and some federal officials.
The trial court judge previously ruled that the case brought by the attorneys general of Delaware and Washington, D.C. could proceed, and authorized subpoenas that would give the plaintiffs insight into the financial operations of the Trump Organization, which operates a major hotel in D.C. that receives bookings from foreign officials and governments.
The Justice Department argued in its appeals filing that because the president will likely have the case heard by a higher court, the appeals court should halt the proceedings and take up the lawsuit directly, or simply dismiss the lawsuit entirely. Trump’s lawyers said in the filing that “litigating the claims would entail intrusive discovery into the President’s personal financial affairs and the official actions of his Administration, including through third-party subpoenas to government agencies.”
The states’ lawsuit alleges that Trump’s ownership stake in the Trump Organization violates the foreign emoluments clause in the Constitution that prohibits federal officials from receiving gifts or salaries from foreign governments without approval by Congress.
D.C.’s attorney general, Karl Racine, said in a statement, that the president “is going to extraordinary lengths to try to stop us from gathering information about how he is illegally profiting from the presidency.”
The emoluments provision has never been tested in court, but the judge overseeing the lawsuit said in November that the Trump administration’s reading that emoluments only meant outright bribes was too narrow, and that it could encompass earnings as well.
The Trump administration has repeatedly asked appeals courts and the Supreme Court to intervene in cases actively underway in discovery or trial phases before a judge or jury has reached a decision. Under prior administrations, this was rare, and the strategy hasn’t generally succeeded for the current government.
Typically, higher courts wait for proceedings to reach a conclusion, unless irreversible damage can be shown from a case’s normal progression. But the novel nature of this lawsuit means that this appeal has the potential for at least partial success: The appeals court could suspend the case while it reviews whether the trial court judge erred on whether the attorneys general had the standing to sue or whether emoluments could be invoked.
The Trump Organization said it would donate any profits to the U.S. treasury from hotel revenue that met the foreign-government test, and has donated once so far. But the group hasn’t allowed outside auditing or released financial information to support how it calculated profits.