WASHINGTON – Attorneys for the District of Columbia and Maryland argued in federal court Thursday that by conducting private business transactions with other states and foreign embassies, President Donald Trump has violated the Constitution and raised questions about whether his loyalty could be bought.

“By accepting emoluments, the president creates a constitutionally prohibited market for presidential influence,” said Steven Sullivan, an attorney representing Maryland Attorney General Brian E. Frosh (D), referring to the payments Trump’s company receives through its hotels and other businesses.

Dusk outside the Trump International Hotel in Washington on July 15. MUST CREDIT: Photo by Evelyn Hockstein for The Washington Post.

That, he said, “puts the state and the District in an intolerable dilemma, which is either pay to play” or risk that others might be paying to gain the president’s favor.

Thursday’s hearing, before U.S. District Judge Peter J. Messitte in Greenbelt, Maryland, focused on two little-tested constitutional provisions: The “emoluments” clauses. Written to stop officials of early America from being swayed by gifts, they bar the president from taking emoluments from either foreign governments or individual states.

The modern meaning of “emolument” is one of the things at issue: Does it cover things like payments for hotel rooms and banquet halls at Trump’s properties? Or should it cover only outright gifts to Trump, with no services rendered?

Thursday’s hearing was just the beginning of this legal fight – or, perhaps, the beginning of its end. The Justice Department, representing Trump, has filed a motion to dismiss. In Thursday’s hearing, it asked Messitte to throw out the case on the grounds that neither the District nor Maryland has a legal right to sue Trump in the first place.

“What we have here is an abstract political disagreement with the president’s conduct, without any concrete impact on the state,” Deputy Assistant Attorney General Brett Shumate said. He contended that the lawsuit was intended to give the attorneys general access to internal documents from the Trump Organization, in the legal discovery process that would follow if Messitte allows the case to continue.

“They don’t get to do a fishing expedition, with discovery, of the president’s businesses,” Shumate said.

Attorneys for the District and Maryland argued that they had indeed been injured – because Trump’s D.C. hotel might be taking away business from other, taxpaying facilities.

An attorney for the District said that, if Messitte lets the case continue, they would use the discovery process to determine what kind of payments the Trump International Hotel in downtown Washington had received from states and foreign governments.

A similar court case, brought by a nonprofit group in the District, was dismissed by a federal judge in New York who ruled that the Founding Fathers had intended Congress, not the courts, to enforce this rule against the president.

In his questioning on Thursday, Messitte sounded as if he did not think that this previous ruling settled the issue. “I searched it carefully. I just couldn’t see what the rationale was,” he said.

In his questioning of Shumate, Messitte sounded skeptical of the idea that this lawsuit was merely a political argument cloaked in the form of a lawsuit.

“What’s the political angle, for suing the president for taking money from a private business?” the judge said.

Messitte also disputed the Justice Department’s argument that it was only speculation that Trump’s business had drawn clients away from others. He cited two embassy parties mentioned in a Washington Post story: Bahrain and Kuwait held expensive embassy parties in Trump’s D.C. hotel after the election.

“You have diplomats from certain Arab countries that are declaring that they are taking their business [to Trump’s hotels] in order to curry favor with the president,” Messitte said. “Do you need a number on that” loss of business to pursue the case further?

No court has considered an emoluments case previously, and attorneys for the plaintiffs say they believe the U.S. Supreme Court may ultimately weigh in regardless of the outcome at the D.C. court level.

A judge has not yet ruled on a suit from nearly 200 Democratic members of Congress, filed in March. A judge in a third suit, brought on behalf of Cork Wine Bar in Northwest Washington, ruled Jan. 2 that the case would be heard in federal court and not D.C. Superior Court, making it more likely that it could be dismissed as well.

In November, Messitte ordered President Trump’s business to preserve relevant records and provided Frosh and D.C. Attorney General Karl A. Racine – both Democrats – with subpoena power to acquire documents should the case advance.

Although Trump resigned from his management position of his company when he entered the White House, he still benefits financially from his businesses, which include residential, office, hotel and golf properties in the United States, Europe and South America.

The Trump Organization has referred questions about the case to the government.

In dueling court papers, the two sides offered competing visions for what the country’s founders intended the emoluments provisions to mean – and to prevent.

Racine and Frosh argued in filings that when Maryland joined the United States, it did so with the understanding that it would be free from “uncertainty about whether the President is acting in the best interests of the American people.”

“The theory underlying the clause, informed by English history and by the Framers’ experience, is that a federal officeholder who receives something of value from a foreign government can be imperceptibly induced to compromise what the Constitution insists be his only loyalty: the best interest of the United States of America,” the filings said.

The plaintiffs also argued that competing hotels in Maryland and the District have been harmed by Trump’s D.C. hotel and that the U.S. General Services Administration, which handles federal real estate, wrongly allowed Trump’s company to continue to lease the Old Post Office building (where the hotel operates), even though a clause in the contract said no elected official could remain on the lease.

Justice Department attorneys responded with their own view of the framers’ intentions. In asking that the case be dismissed, they raised the example of George Washington, newly elected as president, buying several plots of land from the then-territory of the District of Columbia, through a sale Washington had approved as president. Justice attorneys argued that at the time “no concern was raised” that such transactions conferred a benefit, and thus a prohibited emolument, on Washington.

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