Why the government shutdown is good legal news for Trump

President Donald Trump is using the government shutdown to try to force Democrats to fund his Mexican border wall. But there is another, more personal benefit for the president that he probably won’t be mentioning anytime soon: An important appeal in the lawsuit over foreign payments to his Washington, DC, hotel and other businesses has been put on hold.

Trump is being sued by the District of Columbia and Maryland because they say he is violating the Constitution’s “emoluments” clause, which forbids federal officials from accepting emoluments, a term for gifts or payments for services or labor from foreign governments or US states.

The states have won several important procedural decisions, but federal attorneys have filed a number of appeals to slow them down, most notably seeking a freeze on any further discovery — like subpoenas the states might pursue to get information on foreign officials’ stays at the Trump International Hotel in DC.

Now the Justice Department lawyers representing Trump have secured a delay in the ongoing appeals. They cited — wait for it — the current government shutdown, now in its sixth day.

Politico’s Josh Gerstein had the story first:

Justice Department attorneys representing Trump asked a federal appeals court on Wednesday to postpone indefinitely all further filings in an appeal related to a suit that the governments of Maryland and Washington, D.C., filed over Trump’s alleged violation of the Constitution’s ban on foreign emoluments.

The government’s brief is not due until Jan. 22, but DOJ lawyers asked the 4th U.S. Circuit Court of Appeals, based in Richmond, Va., to put the appeal on ice until the shutdown ends.

The Justice Department asked that once the government is funded and the case can resume, all deadlines be extended for a period “commensurate with the duration of the lapse in appropriations.” Maryland and DC, Trump’s opponents in the case, did not take a position on the motion by the government, per the Justice Department brief.

The federal appeals court overseeing the case agreed to delay the case indefinitely shortly after the Justice Department made its request.

The Justice Department’s civil lawyers are typically furloughed during a shutdown, though they are notably allowed to continue working on a case if the court orders it. Federal attorneys filed similar requests to this one in other cases across the country, including, for example, in litigation against Trump’s asylum policies, per Gerstein.

The lawsuit from Maryland and DC alleges that Trump is violating the Constitution because his businesses, including his DC hotel, are making money all over the world and receiving payments from foreign governments and their representatives as well as state and federal officials.

The states successfully argued that they have been injured by the advantages that Trump’s businesses — most importantly, his DC hotel — gained over the states and their interests (like other hotels that receive taxpayer money) through his continued business stake in the Trump Organization while he serves as president of the United States. For example, as the Washington Post noted, the Trump hotel might be receiving business that would otherwise have gone to the Washington Convention Center or a hotel in Maryland, both of which are subsidized by their state governments.

As president, Trump is not subject to the same conflict of interest rules as other federal officials. He is, however, still bound by the Constitution.

So far, he has refused to totally disconnect himself from the Trump Organization. He ostensibly put his holdings into a blind trust overseen by his children, but most ethics experts dismiss that act as meaningless.

Blind trusts are usually run by independent figures, and Trump is clearly in regular contact with his children. More broadly, because the Trump Organization carries Trump’s name, it’s still a signal to would-be customers that the money they’re spending could end up in the president’s pocket.

Jeff Stein and Libby Nelson explained the emoluments issue in much more detail for Vox. You should read their explainer in full, but here is the big takeaway:

There isn’t total agreement among scholars on the question of whether Donald Trump would be violating the Constitution by allowing foreign governments (and companies backed by foreign governments) to do business with his private company.

But top ethics experts from both the Bush and Obama administrations have argued fervently that he is. At issue is the meaning of the emolument clause of the Constitution in Article I, Section 9. An “emolument” refers to compensation for a service or labor, which raises the question of whether foreign payments to Trump-owned businesses constitute forbidden emoluments.

On its own, scholars say, simply having his businesses continue to interact abroad may not necessarily mean Trump is running afoul of the Constitution. One issue is that no American president has ever had anything close to resembling Trump’s international business ties.

Violations of the emoluments clauses are difficult to prove because there is little precedent, the definitions are poorly understood, and it is not easy to prove that anybody has been wronged by any alleged violations.

Thanks to the shutdown, it will take the courts a little longer to sort this all out.