Precedent Over “Perceptions”: D.C. Circuit Dismisses Case Against Trump Hotel

Over a year ago, we discussed the challenges brought against President Donald Trump for alleged emoluments and unfair competition connected to his properties. One of those cases was brought by my colleague, Alan Morrison who argued the case on appeal. Despite my respect for Professor Morrison, I have been critical of the theories advanced in the case, Cork v. Trump Post Office. The D.C. Circuit has now unanimously rejected the claims. Even accepting all of the facts alleged by the Plaintiffs, the court ruled that they failed to state a legal claim. In fairness to Professor Morrison and his team, this was a very difficult case with little case law to argue on the merits.

Cork Wine Bar is a restaurant in the U Street corridor and alleged unfair competition from the Trump Hotel under the District’s common law of unfair competition. The panel affirmed the district courts dismissal for failure to state a claim.

After a long analysis for the removal to federal court, the panel reached the merits and stated:

Cork makes no meaningful attempt to square its unfair competition claim with District law. The gravamen of Cork’s complaint is that so long as the President retains a stake in the Hotel, Cork cannot fairly compete, because of the “perception” that Hotel patrons will receive favorable treatment from the Trump Administration. Although Cork suggests in passing that President Trump and the Hotel are “impair[ing]” competition and “interfer[ing] with access” to its business, Cork Br. 44-45, its claim bears little resemblance to the examples listed in Ray and B & W Management, and Cork cites no case showing that the allegations here fall into those categories of unfair competition.

Such claims of perceptions could not overcome the lack of precedents. The court noted that the existing case law militates against this claim. One such case is Ray v. Proxmire, where a tour operator alleged that Senator William Proxmire’s wife had leveraged “the prestige and contacts
enjoyed by a senator’s wife” to promote her rival tour
company. The plaintiff cited special access to the White House and other advantages, but the D.C. Circuit ruled that “financial success does not become unlawful simply because it is aided by prominence.”

The court hit Cork hard and noted that “[d]uring oral argument, we asked Cork to cite any case—from any jurisdiction—in which a plaintiff successfully advanced a similar theory. Cork conceded that no such case exists. Cork’s case cannot survive that concession.”

The case may have greater importance on the issue of removal. Cork argued that, had the case remained in the district’s court system, the reviewing courts would have had greater latitude in the interpretation of the common law. The panel acknowledges this point by saying that “[i]n fairness, Cork did not plan on having its common-law claim adjudicated in a court incapable of adapting the common law to fit these allegations.” However, the panel finds that the case was properly removed and denied a motion to certify the common law question to the District of Columbia Court of Appeals.

Here is the opinion: Cork v. Trump Post Office

31 thoughts on “Precedent Over “Perceptions”: D.C. Circuit Dismisses Case Against Trump Hotel”

  1. For anyone who says that Trump receives a benefit (emolument) from a foreign government official who stays at one of the Trump Hotels I would ask “which dollar did he receive?”. Evidently no one understands the expenses associated with running a hotel. I would be surprised if the DC Trump hotel has even turned a profit yet. Besides, anyone not suffering from TDS would want to stay there…it is a drop dead gorgeous property.

  2. EXECUTIVE PRIVILEGE

    An implied presidential power that allows the president to refuse to disclose information regarding confidential conversations or national security to Congress or the judiciary (limited by US v. Nixon)

    – Quizlet
    _______

    SPOUSAL PRIVILEGE

    “Both types of privilege are based on the policy to promote marital felicity, and Under the Federal Rules of Evidence, in a criminal case the prosecution cannot compel the defendant’s spouse to testify against him. Also refer as spousal immunity, marital privilege or spousal testimonial privilege.”

    – Halscott Megaro
    ______________

    FIFTH AMENDMENT – RIGHT AGAINST SELF-INCRIMINATION

    This provision of the Fifth Amendment protects a person from being forced to reveal to the police, prosecutor, judge, or jury any information that might subject him or her to criminal prosecution.

    – Annenberg
    __________

  3. This would be a good time for you to apologize for telling Congress that the remedy for Trump’s refusal to comply with subpoenas is not impeachment, but to go to courts to enforce the subpoenas; now that a court has ruled in the McGann case that the courts will not get involved to enforce any subpoenas. Not because the subpoenas are invalid but because the court does not think it should get involved in a dispute between the executive and congressional branches.

    1. that the courts will not get involved to enforce any subpoenas.

      No, the courts would not enforce a subpoena of a member of the President’s confidential staff.

  4. OMG I don’t care where this gets posted but my God people!! Joe Biden is the dummest mofo demented plagiarizing liar ever to run for president!! He doesn’t have a chance in hell nor should he!! OMG he is AWFUL!! AND stupid!! AND senile!! And Barack Obama let him run a corrupt family enrichment enterprise out of the VP office. Look at his son Hunter! Look at his brother! Look at his sister!
    Look at how the entire Biden family ENRICHED themselves and became MILLIONIAIRES by cashing in on Joe’s office for DECADES!! The whole corrupt fraudulent Obama/Biden admin makes me puke.

  5. Jonathan the left and anti Trumpers and the nutty professors, who have gone off the deep end, like Lawerence Tribe of Harvard, come up with dumbest, most foolish ideas and case law to justify their anti Trump opinions. What is going to happen if Trump gets reelected? these people are going to go off the deep end, very deep end.

  6. It would appear that the D.C. Circuit now has time to adjudicate the Hillary Clinton “emoluments” violations related to her global pursuit of “contributions” to the Clinton Foundation and International Monetary Fleecing Scam Endowment as the Secretary of State of the United States.

    How is it that the Deep Deep State can investigate President Trump incessantly while ignoring Hillary and Bill Clinton and their accomplice and facilitator, Barry Obongo, the “fake” un-president?

    P.S. Anyone notice that Bill is a little more relaxed and appearing more in public after the untimely, tragic and regrettable death of Jeffrey Epstein?

  7. Why would anyone staying in a Trump hotel all over the world, paying the going rate, believe they would receive preferential treatment? As long as it’s the going rate, this is a hotel that rents to the general public.

    Compare and contrast to Hillary Clinton’s foundation and Bill Clinton’s speaking fees. Foreign governments paid more than the going rate to Bill Clinton when they had business before State. Big donors to the Foundation received plum government contracts. That would be a clear example of a pay-to-play allegation to be investigated.

    But paying the general rate at a public hotel? That’s ridiculous.

    Trump has fame and notoriety, which makes his hotel the recipient of more business from fans, and boycotts from anti-Trump people. None of that has anything to do with unfair competition or emoluments.

    It’s like saying it’s not fair to have a makeup boutique at a trade show next to Kylie Jenner’s kiosk, because the latter is world famous and blows the competition out of the water.

    It’s just further harassment.

    1. It’s all because libtards have lost their minds and are in collective hysterics about anything Trump. It’s all about their unhinged emotions and nothing about facts or rational thought.

      1. I like the word “libtard”. I suppose a Republican one wants to criticize can be called a “Retard”. Political hacks can be at the level of retards. All the poop throwing at Trump is disgusting. I didn’t vote for him but he is our President.
        There is an old song out there with the lyrics:. Respect! Just a little bit…

        1. Derogatory terms like libtard and Rethuglican or Trumper shuts down any discussion. People brace against any argument that contains an insult. Some people refuse to acknowledge the when someone makes a good point, no matter what they say.

          There is so much in policy and behavior trends to criticize. Getting personal undermines.

    2. Not 100% sure, but 99% sure the emoluments clause only applies to actions/benefits after the president is in office, not before. Who would want to be president if they could no longer have their businesses? They are run by a trust or family member, but not closed down. If Trump opened a new business now, like a PR agency solely dedicated to stomping Adam Schiff, he could not profit from it while in office. But, what if it were a non-profit? Hmmm….

  8. but Turley must find something, anything. to try to make Trump look good in the face of his latest failures.

    Translation: Turley is not doing anything to make me appear sane.

    FIFY

    1. This ruling does NOT mean Trump doesn’t violate the emoluments clause by having an overpriced hotel in the D.C. area that is frequented by foreigners looking to get favors from der fuerher, but Turley must find something, anything. to try to make Trump look good in the face of his latest failures.

      1. Turley voted against Trump. He’s a democrat, sweetheart. And the earth is round. He’s just a man of principles. I know how hard it is for you to understand that. Partisanship makes you deaf, dumb, and blind.

      2. Do the foreigners pay the going rate at the hotel? Should the hotel not rent rooms to foreigners?

        It doesn’t mean that he did violate the emoluments clause, either.

          1. Thanks for the link, Oky. Every time I think winter is over and take the blankets off my horses, it gets chilly again. I think this few days might be winter’s last hurrah.

            I just hate when we get frosts after a warm spell, because it pinches off the new growth that pushes up.

      3. your a brainwashed TDS victim.
        the POTUS and VPOTUS are not constrained by emoluments clause.
        They are not officers of the american government, they are uniquely elected and are the embodiment of the electorate.
        they are immune …..this is why Trump always says he doesn’t have to sell and didn’t even have to step back, he choose to , didn’t HAVE TO.

      4. You’re deranged. You really need help for your TDS. Stop watching MSNBC which has to retract their stories daily.

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