Trump lawyers seek to pause evidence collection in foreign gifts lawsuit

[Julian Englis]

Source: CNN

President Donald Trump's personal lawyers are trying to pause evidence collection in a fight over the constitutionality of the revenue of his Washington hotel, according to a new request to a federal court to stay the case.

Previously, the DC and Maryland lawsuit alleging the President had received illegal gifts through the Trump International Hotel was moving to its discovery phase, with the state attorneys general sending out several subpoenas, including to the Trump Organization. A federal judge had allowed the lawsuit against Trump's businesses to move forward from the states, though the judge had not ruled on whether to dismiss a lawsuit against the President personally.

Now the Justice Department is also appealing that judge's ruling to the 4th US Circuit Court of Appeals, giving Trump's personal legal team a foothold to ask for a pause in the case.

Maryland Attorney General Brian Frosh had some harsh words for the President's lawyers' move Friday. "I think they may have violated Lewis Carroll's copyright on 'Alice in Wonderland,' " he said.

Read more: https://www.cnn.com/2018/12/14/politics/trump-emoluments-evidence/index.html

[elleng]

1. HAHA! Have liked Frosh (he's MY attorney general, as I live in MD,)

but never knew about his sense of humor! ALICE IN WONDERLAND!!!

[The Velveteen Ocelot]

2. Just enough time to shred everything?

[Fiendish Thingy]

3. Is this a normal thing?

Seems like it would just buy time to destroy evidence...

[Jim Lane]

6. It's not the norm but not rare.

I was subpoenaed as a nonparty witness in a case in which the defendants' motion to dismiss, which should have been granted, had been denied. Defendants appealed. (This was in the New York state system, which allows almost anything to be appealed.) The appellate court granted the defendants' motion to stay the discovery pending resolution of the appeal. I suspect that the reason for the stay was that a cursory review of the record showed that the plaintiff's case was absurd. The court probably reasoned that there was no reason for the plaintiff, the defendants, and nonparties like me to incur the expense and inconvenience of discovery when the case would be thrown out anyway, which in due course it was.

The more common procedure is that an appeal doesn't stay discovery. There's a balancing of interests, though. The court will consider the probability that the case will be dismissed, the burdensomeness of the discovery if it goes forward but later proves to have been superfluous, and the prejudice to the party seeking discovery if pretrial proceedings are delayed.

On that last point, I don't buy destruction of evidence as a consideration. Defendants have already had time to destroy any evidence they want to. Furthermore, the key evidence wouldn't be subject to complete destruction. If the Kingdom of Freedonia held a gala ball at Trump's hotel, that fact can be proven even if the hotel has mysteriously lost all its records.

Based on the linked article, Trump's businesses moved to dismiss the case against them and the judge denied the motion. Such a denial in federal court is ordinarily not appealable. The first issue for the courts would be whether to allow the appeal at all. The emoluments case probably raises some novel legal issues. That would argue in favor of deciding those issues now (to the extent they don't depend on evidence). Only if this case is deemed to be an exception, so that the appeal is allowed, would the question of a stay pending appeal even arise. From the article I'm not clear if the appellate court will hear the case at this stage.

[sakabatou]

4. What are the lawyers trying to hide?

[PSPS]

5. Why is the Justice Department acting as trump's personal lawyer? (rhetorical)

[Jim Lane]

7. It's probably legit.

Trump and his businesses are being sued only because Trump is a government official. (If he weren't, there'd be no Emoluments Clause argument.) The general rule is that a government official who's sued in his or her official capacity is entitled to be defended by the government. Otherwise, people who weren't independently wealthy could be deterred from seeking government office. They'd be worried that a lawsuit could bankrupt them even if they won.

In this instance, Trump could probably afford to pay for his own defense but I wouldn't regard that as 100% certain!