President Donald Trump should not be barred from renting rooms to foreign governments, even those that say publicly say they are doing so to curry the President's favor, a Trump administration attorney argued Monday.
Arguing the emoluments clause of the Constitution is "not a comprehensive conflict of interest" rule, Deputy Assistant Attorney General Brett Shumate told a federal court the President must actually take action favorable to the foreign government -- a quid pro quo, or exchange -- to run afoul of the law.
Trump is not responsible for a foreign official's "unilateral attempt to sow favor," Shumate said.
At one point, federal district judge Peter Messitte asked: "How is that different from bribery?"
Bribery, Shumate said, would require the President to have "some corrupt intent."
Maryland and Washington DC are suing, claiming Trump's ownership of the Trump International Hotel in Washington puts other hotels at a disadvantage in attracting business.
Messitte said he would decide by the end of July if the case should move forward or, as the administration has asked, if he will dismiss the case.
Monday's hearing in a Maryland federal court largely focused on the definition of "emoluments," an obscure word in modern parlance that the plaintiffs -- Washington, DC and the state of Maryland -- argued was used more commonly in the time the Constitution was written.
Eighteenth-century dictionaries defined the word as "a profit, gain or advantage," argued Stephanie Litos of the DC attorney general's office. There is little historical evidence of how the founders intended for it to be read in the Constitution, but "they used it in a broad way," she argued.
Shumate offered a narrower definition: "Profit arising from service to a foreign government," though he acknowledged the broader definition also appeared in the dictionary.
To accept the broader definition, he said, would bar federal officials from conducting personal financial transactions. The Constitution makes no distinction between the president and lower-level federal officials, he said.
"It didn't intend to prohibit a private commercial transaction," Shumate said.
Maryland Solicitor General Steven Sullivan said Monday a cloud of corruption hangs over Trump's ownership of the hotel "irrespective of whether such influence is actually being brought to bear."
The administration's reading of the Constitution "would prohibit the President from receiving $5 to carry a foreign diplomat's bags, but allow him to receive thousands of dollars to rent the same foreign government event space," Sullivan said.
The emoluments clause is largely unexplored legal territory, the judge noted. Among the precedents cited by the attorneys: President Barack Obama's book sales, President Ronald Reagan's pension from his time as California governor, and land President George Washington bought from a government auction in the 1790s.
Maryland Attorney General Karl Racine told reporters after the hearing that if the judge allows the case to move forward, he will move towards requesting hotel financial records. He would not say whether the plaintiffs will request Trump's personal tax returns.
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