Trump's personal attorney, William Consovoy, requested the move to the 4th U.S. Court of Appeal in Richmond, Virginia, following recent rulings by U.S. District Judge Peter J. Messitte that allowed subpoenas seeking material from Trump businesses and other entities.
The lawsuit brought by the attorneys general of Maryland and the District of Columbia alleges that foreign and domestic government spending at Trump's Washington hotel amounts to gifts to the president in violation of the Constitution's emoluments clause, which prohibits federal office holders from receiving anything of value from a foreign state or its representatives.
Justice Department lawyers have argued in court filings that the legal production of documents, known as discovery, "would necessarily be a distraction to the President's performance of his constitutional duties" and could cause separation of powers concerns. Government lawyers said last month that they planned to oppose the continuation of the case in federal district court.
The success of such a petition would partly rest on showing Messitte's decisions to be clearly wrong and that Trump has no adequate alternative for relief in the case.
Friday's action was unexpected because Trump's personal attorney moved for a midcase appeal. In a previous ruling, Messitte had allowed Maryland and the District to sue Trump both in his official role and as a private businessman. Consovoy entered the case earlier this year to represent Trump's personal interests. Consovoy had filed several briefs in the case, but the judge did not allow him to argue on Trump's behalf in several hearings that focused on Trump's official role as president.
In his filing Friday, Consovoy urged Messitte to halt any action providing Maryland and the District with Trump-related documents. Consovoy said the broad requests for documents would require Trump's lawyers "to review, analyze and advise their client on the scope of the subpoenas, any objections to them" and any material that would be turned over.
The first round of subpoenas filed last week by the two attorneys general targeted 37 entities, including the 13 Trump-linked businesses and the federal agency that oversees the lease for Trump's Washington hotel. Maryland and the District have been assisted in the lawsuit by the Citizens for Ethics and Responsibility in Washington, a government watchdog group.
Subpoenas were also sent to the Defense, Commerce, Treasury and Agriculture departments, as well as the General Services Administration, all of which have spent taxpayer dollars at the hotel or have information on Trump's finances relevant to the case.
Maryland Attorney General Brian Frosh said Consovoy's argument that Trump is immune and can't be sued for violating the constitution is "absurd."
"This argument has been stolen directly from Alice in Wonderland. If I was Lewis Carroll I would be infuriated," Frosh said.
CREW chairman Norman Eisen dismissed Consovoy's move as "yet another variation on the strategy of delay that the president has repeatedly tried in this case and failing every time. It's meritless."
Messitte responded in November to Justice Department efforts for a midcase appeal with a somewhat blistering opinion that said merely disagreeing with the court doesn't constitute a required "substantial" reason for appeal and noted his concerns of any efforts by Trump to delay proceedings.
Messitte filed an order Friday afternoon telling the attorneys general to respond to Consovoy's stay request by December 19 and Trump's government lawyer to respond by December 21.
If Messitte does not allow Consovoy's request to proceed to the appeals court, it is possible that Consovoy or the Justice Department attorneys might ultimately ask the Supreme Court to consider the case. But most appeals typically wait until the end of the case.
The emoluments clause has never been fully tested in an American courtroom. Two other lawsuits accusing the president of violating the clause are in other federal courts. Neither has reached the discovery stage.
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