Twenty-eight subpoenas from D.C.’s and Maryland’s attorneys general totaling nearly 500 pages have revealed the outline of what will be a remarkable, first-of-its-kind trial. That’s 28 very satisfying uses of “YOU ARE COMMANDED” and 86 references to “requests for production.” Which are, of course, not really requests, given that whole “YOU ARE COMMANDED” part and the judge’s Dec. 4 imprimatur.
The attorneys general, joined by Norman Eisen and Deepak Gupta of Citizens for Responsibility and Ethics in Washington (CREW), argue that the president is accepting income from foreign and domestic governments via entities in which he has a financial interest, in this case the Trump International Hotel and BLT Prime, the restaurant inside it. That, they say, violates the Constitution’s emoluments clause:
No Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
To prove their case, they’re demanding two genres of documents: those targeting Trump-linked entities, which will give them more information about Trump’s financial interests and their relationships with governments; and those targeting government, which will give them more information about the government’s dealings with businesses in which Trump has an interest—and their similarly situated competitors.
The first set of subpoena targets translates to the attorneys general demanding information both from the Trump Organization and Trump Trust and from the wider array of entities involved with Trump’s leasing of the Old Post Office, the resultant Trump International Hotel, and/or BLT Prime, the restaurant in the hotel. They want details on everything, from lease-related communications to tax returns to cash taken from governments—both foreign and domestic—from these entities.
To show just how thoroughly they’re delving into Trump operations, here’s the list:
DJT Holdings LLC c/o National Registered Agents, Inc.; 160 Greentree Dr., Suite 101, Dover, DE 19904
DJT Holdings Managing Member LLC c/o National Registered Agents, Inc.; 160 Greentree Dr., Suite 101, Dover, DE 19904
OPO Hotel Manager LLC c/o National Registered Agents, Inc.; 160 Greentree Dr., Suite 101, Dover, DE 19904
OPO Hotel Manager Member Corp. c/o National Registered Agents, Inc.; 160 Greentree Dr., Suite 101, Dover, DE 19904
THC DC Restaurant Hospitality LLC c/o National Registered Agents, Inc.; 160 Greentree Dr., Suite 101, Dover, DE 19904
The Trump Organization Inc. c/o National Registered Agents, Inc.; 875 Avenue of the Americas, Suite 501, New York, New York 10001
Trump International Hotels Management LLC c/o National Registered Agents, Inc.; 111 Eighth Avenue, New York, New York 10011
Trump International Hotels Management Member Corp. c/o National Registered Agents, Inc.; 160 Greentree Dr., Suite 101, Dover, DE 19904
Trump Old Post Office LLC c/o National Registered Agents, Inc.; 160 Greentree Dr., Suite 101, Dover, DE 19904
Trump Old Post Office Member Corp. c/o National Registered Agents, Inc.; 160 Greentree Dr., Suite 101, Dover, DE 19904
Trump Organization LLC c/o National Registered Agents, Inc.; 111 Eighth Avenue, New York, New York 10011
The Donald J. Trump Revocable Trust c/o Donald J. Trump Jr. as Trustee of the Donald J. Trump Revocable Trust; The Trump Organization, 725 5th Avenue, New York, New York, 10022
The Donald J. Trump Revocable Trust c/o Allen Weisselberg as Trustee of the Donald J. Trump Revocable Trust; The Trump Organization, 725 5th Avenue, New York, New York, 10022
The attorneys tucked in a delightful catchall in every subpoena, one that will prove useful later on in this case (or in generating other cases): They’re demanding of each subpoenaed entity “[d]ocuments sufficient to Identify all Businesses doing business in the Washington D.C. metropolitan area in which Donald J. Trump or Trump Trust has a Financial Interest.” In return, they should get basic details about the businesses, ownership interests, and legal framework (i.e., the articles of incorporation).
The federal government subpoenas target the Department of Commerce; the Department of Defense; the General Services Administration; the Treasury; and the Department of Agriculture. The Treasury, of course, covers the IRS. These subpoenas request records concerning any payments to “hotels, restaurants, or event spaces in the Washington D.C. metropolitan area” since Jan. 1, 2014, and payments to the Trump Hotel and BLT Prime following Nov. 8, 2016.
Trump’s challengers are also demanding all communications around the Trump-linked competitors within the agencies and records “[c]oncerning the policies, guidelines, factors, and other venues” surrounding agencies’ decision-making processes with respect to hotels, restaurants, and event spaces.
It’s going to make for damning reading.
The only possible wrench: a federal appeals court ruling squashing the case. But Trump’s last-ditch appeal to the Fourth Circuit—covering Maryland, where the case was filed, North Carolina, South Carolina, and West Virginia—is unlikely to succeed. His attempts to get this issue to the Fourth Circuit early through the usual means, requests to the district court to dismiss the suit or permit an interlocutory appeal, already failed. Now he’s taking a claim to the Fourth Circuit directly with a “writ of mandamus” claim.
To prevail in his effort to get the Fourth Circuit to halt proceedings, Trump would have to convince the judges that permitting the district court to proceed to hear the case would be “illegal or improper.” Fat chance. Then again, the current composition of the Supreme Court means all lower-court decisions are vulnerable to politicization.
Next comes the part where the subpoenaed entities try to claim exceptions to discovery, or privilege. The biggest category in which privilege will play a role is almost certainly the attorneys general’s request for documents related to “emoluments litigation,” defined as any of the emoluments cases brought against Trump not just by D.C. and Maryland, but also by CREW and Congress—any case based on the emoluments clause.
But there’s a catch.
When you request documents related to litigation, organizations can claim privilege. For example, anything prepared in anticipation of litigation is subject to work-product privilege. But when they withhold documents on the basis of privilege, the respondents have to say why. Instead of the privileged documents, they’re required to produce an account of the privilege being exercised, the general subject matter, the date, and the request to which it would be responsive. To summarize, they need to provide enough information for the challengers, and the court, to decide if privilege should apply or not. That can be a lot of information.
The emoluments litigation against Trump may prove a boon for both the Constitution and the public. In the sense that the subpoenas request tax records from Trump’s interests, they’ve also got the potential to help reverse-engineer a chunk of Trump’s personal financial picture. In sum, the subpoenas already submitted should produce enough information to win this case—Trump’s acceptance of perks from and at the expense of governments being so painfully apparent—and to launch a thousand more.
