The Justice Department on Monday challenged a federal judge’s decision to allow a case accusing President Donald Trump of profiting off the presidency to move forward, asking an appeals court to take up the case instead.
Justice lawyers asked the U.S. Court of Appeals for the District of Columbia Circuit to overrule a federal judge and instead allow for a mid-case appeal or to dismiss the case outright, calling the case dealing with a Revolutionary War-era clause “extraordinary.”
The government lawyers also want the court to suspend legal discovery recently approved by U.S. District Judge Emmet Sullivan, which would force Trump-related entities such as his New York and D.C. hotels, Trump Tower, the Trump Organization, and Mar-a-Lago Club to turn over business tax returns, receipts and other documents.
Justice lawyers said in the filings that answering their 37 subpoena requests in the interim, by July 29, would cause Trump “irreparable injury” and distract him from his official duties.
This is the second time Justice lawyers have petitioned a higher court to take up a case dealing with the emoluments clause, which bans government officials from accepting foreign gifts and money without Congress’ permission. Last December, the federal appeals court agreed to hear a similar case out of a Maryland federal court that had also reached such a point. In the meantime, a stay on proceedings was also allowed.
The lawsuit was brought by nearly 200 congressional Democrats led by Sen. Richard Blumenthal of Connecticut and Rep. Jerrold Nadler of New York, who is also chair of the House Judiciary Committee. It argues that Trump has been accepting gifts from foreign governments without congressional approval. Trump, unlike modern presidents before him, has declined to fully divest from his businesses.
“Our goal is simple and straightforward — stopping President Trump from putting a ‘For Sale’ sign in Russian on the door to the Oval Office,” Blumenthal said in a statement Monday. “Unsurprisingly, the Trump Administration is still seeking to delay, delay, delay, but we are confident that the D.C. Circuit will recognize the well-reasoned logic of the District Court, and allow discovery to proceed.”
The Trump Organization did not immediately return requests for comment.
The filing of a writ of mandamus is considered an “extraordinary remedy,” according to the Justice Department’s website , which “should only be used in exceptional circumstances of peculiar emergency or public importance.”
Among the judges who sit on the appeals court, includes chief judge is Merrick B. Garland, whose nomination by President Barack Obama to the Supreme Court was not allowed to be heard by Republicans.
The filing seeking for a writ of mandamus comes two weeks after Sullivan ruled against Justice Department lawyers who sought a mid-case appeal to a higher court and a stay on proceedings. For Justice to succeed at the appeals level, they must meet a demanding standard that would partly rest on showing Sullivan’s decisions to be clearly wrong and that there’s no adequate alternative for relief in the case.
They have argued that the court has ignored “unique separation-of-powers concerns” involved in having members of one branch of government conducting discovery against the president in his official capacity. The government also wrote in their filing that the legislature itself must bring such a case, “not an amalgam of individual legislators or even a single chamber of a bicameral body.”
The case argues that the president has received foreign government favors, such as Chinese government trademarks for his companies, payments for hotel room stays and event-space rentals by representatives of Saudi Arabia and Kuwait, and proceeds from Chinese or Emirati-linked government purchases of office space in Trump Tower.
Ethics experts say the constitutional emoluments clause was created by the Founding Fathers to ensure that government officials act with the interests of the American public in mind instead of their own pocketbooks.
Unlike prior presidents, Trump chose not to divest from his assets and he remains the owner of the Trump Organization, a sprawling business empire with 550 entities in more than 20 countries that include branded hotels, golf courses, licensing deals and other interests. His Washington, D.C., hotel is near the White House and has become a magnet for foreign governments, previously hosting groups tied to Kuwait, Bahrain, Turkey, Malaysia and Saudi Arabia.
The District of Columbia case is one of three that argues the president is violating the emoluments clause, but this case is notable because the plaintiffs in this suit — members of Congress — are mentioned in the clause itself. The Democrats’ attorneys have argued that Congress not only has a right but is required, as part of their jobs, to weigh in on potential emoluments to Trump such as a $6.5 million condo purchase by the Qatari government or a Chinese-government owned company’s investment in a project that will include a Trump-branded hotel and golf course in Indonesia.
Justice Department lawyers argued in court papers that the Democrats suing the president are not being injured by him at all but by their colleagues in Congress, who have refused to take up the emoluments issue. And the government has contended that Trump’s business activity such as hotel room earnings don’t qualify under the constitutional definition of emoluments.
Blumenthal said the subpoenas seeking information in the case are “targeted” to get information that ensures the president isn’t avoiding his constitutional responsibility to ask Congress to approve any emoluments. The aim of the subpoenas is to trace ownership interests and money flowing to Trump from foreign governments and their representatives.
The subpoenas were seeking the terms governing the Donald J. Trump Revocable Trust and related information, and aimed to determine trademarks granted to Trump or his companies by foreign governments since Jan. 20, 2017, and all pending applications for foreign trademarks.
The Justice Department asked the court in its filing Monday for a ruling regarding their request for a stay on the subpoenas by July 22 — one week before the official response deadline — “in order to provide time to seek relief from the Supreme Court if necessary,” an indication that the governments attorneys may be willing to elevate the case to the highest court if there is any indication they won’t succeed at the appeals court.