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Maryland and D.C. sue Trump over his private businesses

President Trump attended a White House meeting on Monday, a day before Jeff Sessions is set to testify before the Senate.
President Trump attended a White House meeting on Monday, a day before Jeff Sessions is set to testify before the Senate.(Olivier Douliery/Getty Images/pool)

NEW YORK — A day before Attorney General Jeff Sessions’ scheduled testimony before senators looking into Russian interference in the election, President Trump faced a new legal challenge Monday over whether his failure to divest his vast businesses is unconstitutional.

The Democratic attorneys general of Maryland and the District of Columbia filed a lawsuit contending that Trump’s continuing ownership of the businesses undermined public trust and violated constitutional bans against accepting payments from foreign governments.

The complaint, filed in a Maryland federal court, makes many of the same arguments in a lawsuit filed earlier this year by a Washington watchdog organization in a New York federal court.

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But some legal analysts said the new suit may progress further because the plaintiffs were government entities, which could have stronger standing to sue the president.

In a separate development Monday, PBS reported that a friend of Trump said the president is considering ‘‘terminating’’ special counsel Robert Mueller, who is leading an independent investigation into Russia’s meddling in the election.

“I think he’s considering perhaps terminating the special counsel. I think he’s weighing that option,’’ Newsmax CEO Chris Ruddy said on “PBS NewsHour.” The White House did not immediately respond to the report.

Under current Justice Department regulations, such a firing would have to be done by Sessions’ deputy, Rod Rosenstein, not the president — though those regulations could be set aside.

Sessions has agreed to testify in open session Tuesday before the Senate Intelligence Committee, which is expected to question him about his Russian contacts during the election campaign and his role in the firing of FBI director James Comey.

The Justice Department said Sessions requested that the hearing be open because he ‘‘believes it is important for the American people to hear the truth directly from him.’’ The attorney general is expected to defend his interactions with both Russian officials and Comey.

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The White House on Monday continued to avoid the question of whether it has recordings of conversations between Trump and Comey. The Secret Service said it does not have any but did not rule out their existence in other offices.

The lawsuit against Trump from Maryland and the District of Columbia is part of a broader, coordinated effort by the president’s critics to force him to defend his ownership of his business empire.

Some congressional Democrats are expected to file a third lawsuit, as early as this week, also arguing that the president’s behavior is unconstitutional.

The Constitution prohibits federal officials from accepting gifts or emoluments from foreign governments. It also prohibits the president from accepting economic benefits or emoluments from federal or state governments, other than his salary. But in 230 years, no court has interpreted what exactly constitutes an emolument.

Brian E. Frosh, the Maryland attorney general, said if the lawsuit progressed to the discovery phase, he and Karl Racine, attorney general for the District of Columbia, would seek to obtain the president’s tax returns to gauge the extent of his business dealings.

“It is unprecedented that the American people must question day after day whether decisions are made and actions are taken to benefit the United States or to benefit Donald Trump,” he said. “The president’s conflicts of interest threaten our democracy.”

The Justice Department had no immediate response. But in a brief filed last week in response to the New York case, the department argued that the earlier lawsuit should be dismissed because the emoluments clauses were never intended to prohibit a president from owning a business while in office.

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Even if the president had violated those prohibitions, the department’s lawyers contended, it is up to Congress, not a federal judge, to act. They also argued that the plaintiffs had shown no financial harm.

Monday’s complaint claims that businesses owned by Trump divert customers away from businesses that the District of Columbia or Maryland either own, license, or tax, harming those governments financially.

For example, it contends, the Trump International Hotel in Washington competes with facilities owned or operated by the city’s government, including the Walter E. Washington Convention Center, its armory, and its Carnegie Library.

Racine told reporters Monday that just as states intervened to challenge Trump’s efforts to limit travel from some countries, he hoped to force the court to step in and evaluate Trump’s business entanglements.

“Congress has given the president a total pass,” he said. “State attorney generals are serving as a necessary check and balance in the Trump era where others failed.”

The suit also claims that the president has used his position to help his businesses. His visits to the Trump hotel in the renovated Old Post Office have raised the facility’s profile, it claims, and put competitors at a disadvantage.

Moreover, the suit claims, the president’s business dealings create an “intolerable dilemma” for governments like Maryland and the District of Columbia. If they refuse requests from the Trump Organization for concessions because they are too costly or against the public interest, the company could turn to other states more willing to grant favors.

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The Justice Department argues that the emoluments clauses should be narrowly construed to prohibit the president from accepting gifts or payments in his official capacity.

It does not extend to ordinary commercial arms-length transactions like hotel stays or approvals of trademark applications, the department contends. The president’s defenders say he has taken every reasonable step to distance himself from the Trump Organization, the family company now run by Trump’s adult sons.

Zachary Clopton, a law professor at Cornell University, said Monday’s lawsuit may be more serious than the New York complaint because the Maryland and District of Columbia governments are legally considered “coequal sovereigns” with the president. That makes them stronger opponents in the constitutional argument over emoluments, he said.

The lawsuit suggests that Maryland has a special standing to sue because the anticorruption prohibitions written into the Constitution helped induce Maryland to support the union.

The complaint “represents an important new front in the emoluments war,” said Norman Eisen, chairman of Citizens for Responsibility and Ethics in Washington, whose lawyers are co-counsel in the case. The group was also the original plaintiff in the New York lawsuit.