Maryland Attorney General Brian Frosh joined the Attorney General of Washington D.C. on Monday in a suit challenging whether Donald Trump is violating the “emoluments” clause of the U.S. Constitution.
The central issue is whether Trump’s failure to divest from his many financial holdings, allowing him to profit from spending by foreign governments intended to influence his decisions, puts him at legal and constitutional jeopardy. While the obvious focus is on his hotel just down the street from the White House where many foreign officials have stayed, the suit has the potential to raise a wide array of issues, including whether the President can be forced to release his tax returns.
Whether a court will actually take the case is an open question. The emoluments clause has never been tested before. On the other hand, we’ve never had a president like Donald Trump before, someone with an incredible tangle of financial interests who refuses to publicly disclose his holdings.
While some might argue that the emoluments clause is out of date or that the authors of the Constitution weren’t really serious about its inclusion, a more compelling position is that insuring that a president’s decisions are not “bought” by a foreign power is as relevant in 2017 as it was in 1787. Trump’s failure to either divest or disclose has created a constitutional quagmire that is entirely of his own making.
Frosh’s joining in this lawsuit is possible only because of a law passed by the Maryland General Assembly this year. Prior to adoption of that statute, the Attorney General had to receive permission from the Governor for most legal actions.
Larry Hogan’s reluctance to allow suits or even to comment on policies of the Trump Administration that adversely impact Maryland persuaded the State Legislature that the change was needed. The other essential ingredient that facilitated the new law was the trust and confidence that legislative leaders have in Frosh, a former member of both the House and the Senate.
Frosh has never hesitated to take on tough questions. Among other issues, he has been a leading advocate for environmental protection, a sponsor of Maryland’s landmark gun control law and strong supporter of marriage equality and immigration rights. That Hogan is on the other side of every one of those issues helps explain the General Assembly’s willingness to expand Frosh’s authority.
You won’t be able to find references in any of Hogan’s remarks to the word “emoluments.” Unless the subject comes up while he is playing golf with Trump, Hogan will be able to dance around the subject. Don’t expect a press release or an answer to a reporter’s question.
That approach won’t work, however, on other Trump policies impacting Maryland. At this point, the President’s proposed budget includes no funds for the preservation of the Chesapeake Bay. Frosh is already talking to a number of other state Attorneys General about filing suit if the Administration follows through on its stated intention to gut environmental protections.
Hogan’s unwillingness to offer an opinion on the attack on the Bay leaves you wondering whether his brand of conservative Republicanism has any room for actual conserving. The Governor is obviously very uncomfortable criticizing the President, but his apparent abandonment of the State’s most critical natural resource is sure to be an issue in next year’s election.
Similarly, Hogan’s preference for tip-toeing around the Republican revisions to the Affordable Care Act doesn’t seem politically sustainable. Health care is a significant part of the State’s economy just as it is nationally.
Moreover the evidence is clear that a bill anything like the one that passed the House of Representatives, and which Trump applauded with an unseemly White House celebration, would do great harm to the citizens of Maryland. Much like Congressional Republicans, Hogan so far has placed loyalty to his political party higher than concern for the health of the residents of Maryland.
As we approach the 2018 election, we’ll find out whether the political calculation that Larry Hogan made was smart or self-defeating. He is trying to walk the tightrope between not alienating Trump supporters in Maryland, who constitute a measurable part of his electoral base, and not alienating those Marylanders–sometimes the same people–who will be harmed by Trump’s policies. He may have figured out the political sweet spot or, like Britain’s Theresa May, his actions may bring about his own political demise.
Meanwhile, until there is a Democratic nominee to oppose Hogan in next year’s gubernatorial election, Frosh certainly seems like the voice and face of the State Party. That’s not to diminish the role of the Congressional delegation, but their focus has necessarily been on what’s happening in Washington.
Frosh’s willingness to speak out, to take action, to articulate a set of values that distinguishes him from both Hogan and Trump, provides an example of courageous leadership that is all too rare these days. Now we need Republicans with the backbone to stand up to Trump’s assault on our democratic system and join Democrats like Frosh who are taking a stand.