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Can D.C. and Maryland Sue the President?

On Behalf of | Jun 14, 2017 | Business Litigation

On June 12th, Maryland Attorney General Brian Frosh and DC Attorney General Karl Racine announced their lawsuit against President Trump for alleged violations of the Emoluments Clause. Frosh and Racine claim that Trump has been violating both the Foreign and Domestic Emoluments Clause of the U.S. Constitution by “receiving millions of dollars in payments, benefits, and other valuable consideration” from foreign, federal, and state agencies. One of the major issues with Frosh and Racine’s claims, however, is whether they have any notable standing to file the case. The plaintiffs claim their standing to be primarily in concern for their local businesses in competition with Trump’s and their financial loss. They cite that foreign and domestic governments and their officials feel obligated to support Trump’s businesses out of courtesy rather than his competitors’. Frosh also asserts that Maryland’s tax revenue is being harmed by the shift of business from MGM National Harbor to Trump International Hotel.

While the plaintiffs provide some examples of businesses affected by Trump’s influence, most of the harm cited seems speculative. There is no specific data showing that business is actually being taken away from Maryland and DC competitors. Frosh and Racine assert throughout the complaint that harm might be coming to their businesses, but do not statistically demonstrate any of their statements. Also, this shift of business could have happened even if Trump had given up his companies completely, which would not violate the Emoluments Clause.

It is expected that the White House will promptly respond to this complaint and deny all of its claims. The response will likely be focused on the particularity requirements for such complaints, which could be an obstacle for Frosh and Racine to overcome. The plaintiffs have already included a few statements from foreign and domestic officials who have been choosing to use Trump’s services, but they will need more in order for the case to hold any weight in court. They could attempt to conduct a study with more of these officials, but it may be difficult to get reliable statements from politicians who have already proven to be acting to gain approval from Trump. It is possible that the plaintiffs could provide more specific information of financial harm they have suffered. Trump’s alleged corruption will remain a concern in the minds of many. The only certainty now is that more accusations and rebuttals will be made in the coming weeks.

Brooke Blaney, a law clerk at Berenzweig Leonard, assisted Managing Partner Seth Berenzweig in writing this blog.