DC Attorney General Karl Racine and his Maryland counterpart, Brian Frosh, drew a ton of attention Monday when they filed a lawsuit against President Trump claiming that Trump’s continued ownership stake in his family company is undermining public trust and causing financial harm to the District and Maryland.
Racine and Frosh’s suit isn’t the first legal action to attempt to test whether Trump is running afoul of the US Constitution’s emoluments clauses prohibiting a president from receiving any income from foreign governments or any domestic government income other than his or her salary—the good-government group Citizens for Responsibility and Ethics in Washington filed a suit in January—but the new suit hinges not just on questions of whether Trump is using his office to enrich his personal finances, but also on the integrity of the terms under which Maryland joined the union.
The DC-Maryland complaint, filed in federal court in Maryland, argues that hotels and convention centers in both jurisdictions stand to lose business to the Trump International Hotel on Pennsylvania Avenue, depriving local governments of tax revenue. But in Maryland’s case, it goes even further and claims that if Trump is reaping profits from the foreign business his family’s hotel company is bringing in, he is violating the relationship between Maryland and the United States.
The complaint cites, among other sources, Maryland’s Declaration of Rights, signed August 14, 1776, by the then newly minted state’s Assembly of Freemen. Among the documents rulings: “That no person ought to hold, at the same time, more than one office of profit, nor ought any person, in public trust, to receive any present from any foreign prince or state, or from the United States, or any of them, without the approbation of this State.” A governor of Maryland found to be in violation would be punished by banishment “forever.”
The language is similar to that in documents adopted by the founders of several other states. Frosh and Racine argue that the the federal emoluments clauses in the US Constitution written in 1787 were incentives for states like Maryland that had their own local restrictions on self-dealing. While Maryland’s state constitution has been rewritten several times in the state’s 241-year history, the Declaration of Rights has always been the underlying document. And that’s where the DC-Maryland suit filed Monday claims its authority.
“The prohibitions contained in the Domestic and foreign Emoluments Clauses were thus material inducements to the states entering the union. As a state sovereign, Maryland retains its power to bring suit to enforce those prohibitions today,” the complaint reads.
It’s a deep cut for sure, but Maryland’s claim that it has the sovereignty to sue Trump may not hold up, says the National Constitution Center’s Lyle Denniston.
Denniston, a longtime Supreme Court reporter (and Maryland resident), says there is plenty of legal precedent for states suing a sitting president, but that the real test for Maryland and DC will be in showing that they, as jurisdictions, are harmed by Trump’s business dealings.
“There is precedent that the states have carry-over interest in their sovereignty, dates from the pre-constitutional period,” Denniston says. “If there’s a real challenge to what these two jurisdictions are trying to do, it wouldn’t be on whether they can sue in the first interests, but it’s whether or not they can show the President’s business interests and alleged violation of the emoluments clause actually cause injury.”
This new case, then, will be tougher for Maryland and the District to make than a 2016 case in which 27 states, led by Texas, sued then President Barack Obama over an executive order deferring deportations for undocumented immigrants whose children are US citizens. Obama’s order was ultimately halted when the Supreme Court deadlocked and upheld a lower-court ruling blocking the President.
“The Supreme Court was pretty lenient was pretty in allowing  states suing Obama over his immigration program, but it was over the cost to the state in issuing drivers licenses,” Denniston says.
That difference could be crucial for Maryland and DC. While they stand to miss out on some tax revenue if the local Trump hotel sucks in more convention and diplomatic business, that’s a second-degree loss. “The states are one step removed from direct commercial injury,” Denniston says.
Denniston actually sees more, however limited, promise in the case CREW brought in New York, where there are many more businesses in direct competition with Trump Organization properties. Either case is still a long shot, even if both share the goal of exposing Trump’s federal income-tax returns.
“The real prospect for enforcement of the emoluments clause is with Congress,” Denniston says. “And we’re not going to get any of that from a Republican Congress. The merits are pretty strong against President Trump. The question is, can you get there?”