The Department of Justice (DOJ) on Tuesday requested that a judge allow a higher court review previous rulings in favor of a lawsuit alleging President Trump has violated the Emoluments Clause of the Constitution.
The DOJ attorneys argue in the filing that there is enough “difference of opinion” on the legal questions in the lawsuit, including the definition of the Emoluments Clause, that an appeals court should review Judge Emmet Sullivan’s rulings before the case advances.
And the Justice Department, which is representing the president in the lawsuit filed by more than 200 Democratic lawmakers, argue that the “exceptional circumstances” of the case mean that a higher court should review its merits even before the lawsuit advances in district court.
{mosads}“[D]espite the 150-year unbroken history of federal courts refraining from enjoining a sitting President in the performance of his official duties, this Court determined that it has the power to do so,” the filing reads.
The lawyers also argued that an appeals court could either significantly narrow the scope of the lawsuit, or rule that the Democratic members of Congress behind the complaint don’t have standing to sue and shutter the case altogether.
And they claim that Sullivan’s ruling on the lawsuit last month “broadly interpreted the Foreign Emoluments Clause in a manner that calls into doubt the constitutionality of conduct of public officials — from President George Washington to President Barack Obama — that has been accepted throughout history.”
The DOJ lawyers also requested that Sullivan, a Clinton appointee, temporarily halt proceedings in the lawsuit while he considers their motion and continue that stay if a higher court does take up their appeal.
“This case presents the unprecedented circumstance of impending civil discovery against the sitting President of the United States concerning his compliance with a constitutional provision in his official capacity. Any discovery would necessarily be a distraction to the President’s performance of his constitutional duties,” the filing reads.
If the judge grants the motion, the D.C. Circuit will likely take up the appeal.
The Democratic members of Congress behind the lawsuit argue that Trump is in violation of the Emoluments Clause when he profits from foreign governments without congressional approval.
They have pointed to Trump’s global businesses, and their continuing operations while he is in office, as evidence that he is violating the clause.
The Justice Department has argued that Trump cannot violate the clause with any commercial profits, but only if he receives gifts or directly profits from an action he takes as president on behalf of foreign officials. DOJ is representing Trump in the case because he is being sued in his official capacity as president and not as an individual.
Trump is also facing a lawsuit from D.C. and Maryland alleging that he violated the Emoluments Clause.