The United States Court of Appeals for the Fourth Circuit has rejected the effort by President Donald Trump to dismiss a lawsuit alleging a violation of the Emoluments Clause of the Constitution due to his accepting foreign government money through his luxury Washington hotel in Washington. I have been highly skeptical of these lawsuits, a view shared by other courts. The 9-6 opinion, below, however has been misrepresented or misunderstood by some. It is not a ruling on the merits but rather the technical standard for what is called an interlocutory appeal. It essentially blocks a Hail Mary play to shutdown the lawsuit. Nevertheless, the dissenting judges denounced the lawsuit as based on a “wholly novel and nakedly political cause of action.”
The appeal to the Fourth Circuit turned on the question of when a litigant can take an interlocutory appeal, or an appeal taken before the resolution of issues or the merits has been reached by the district court.
The majority recognized that “Respondents press novel legal claims. But reasonable jurists can disagree in good faith on the merits of these claims.” The concern is one of judicial management and discretion rather than the interpretation of the Emoluments Clause. The majority did not feel that they could dismiss these arguments prematurely: “The President’s assertion that the Respondents lack any cognizable injury also presents a debatable question. Respondents do seek to extend established precedent to a novel context. But their argument rests on legal principles that the Supreme Court has expressly endorsed.”
Thus, the court holds:
“When assessing whether to issue a writ of 6 The first dissent rejects this holding, proclaiming at length that of course the President is entitled to the extraordinary relief he seeks, and that our contrary view is improperly motivated. The dissent portrays us as “partisan warriors” acting with an “absence of restraint . . . incompatible with the dictates of the law.” First dissent at 29–30. But we remain confident that our narrow holding, reached with careful attention to the standard of review, is the essence of restraint. Readers may compare our measured approach with the dramatics of the dissent and draw their own conclusions. USCA4 Appeal: 18-2486 Doc: 100 Filed: 05/14/2020 Pg: 17 of 105 18 mandamus, a court does not balance the respective merits of the parties’ arguments but instead determines whether the petitioner has established a clear and indisputable right to the writ.7 The President, the petitioner in this case, has not done so.”
“This case presents exactly the exceptional circumstances contemplated by the Supreme Court. A holistic review of the district court’s decisions, including its refusal to certify its orders for appeal under § 1292(b), reveals both a clear abuse of discretion — indeed amounting to whim and caprice — and a judicial usurpation of power in this most unusual case against the President of the United States, thus establishing his entitlement to the extraordinary remedy of mandamus.”
“Novelty, of course, is not new to our courts. As a matter of fact, novel issues occur frequently. Judges everywhere call them “issues of first impression”—issues that require courts to engage in decision-making with seriousness and fairness. When faced with difficult and challenging questions, it may be tempting to invoke politics to justify declaring that we “have not the slightest idea” what to do. Id. at 28. But we must resist. That is particularly true in this matter because even the best efforts to editorialize this case as a political fray must acknowledge that the State of Maryland and the District USCA4 Appeal: 18-2486 Doc: 100 Filed: 05/14/2020 Pg: 22 of 105 23 of Columbia present a simple, non-political question: Should mandamus* issue to override the district court’s discretion not to certify an interlocutory appeal? The answer is equally simple: No. To evade that simple answer, the second dissenting opinion resorts to a baseless (and novel) assertion that the district court’s “several decisions, when viewed holistically” amount to judicial usurpation. Second dissent at 77 (Niemeyer, J.); first dissent at 26 n.1 (Wilkinson, J.) (noting agreement with second dissenting opinion).Editorial writers, political speechwriters, and others are free, of course, to make a career out of accusing judges who make decisions that they dislike of bias and bad faith. But the public’s confidence and trust in the integrity of the judiciary suffer greatly when judges who disagree with their colleagues’ view of the law accuse those colleagues of abandoning their constitutional oath of office. See second dissent at 63 (concluding the district court “purposefully endeavored” to ensnare the President in litigation and the majority now contrives to “protect[]” the district court).”
Here is the opinion: In re Donald J. Trump
Hail Mary full of Grace.
Jane owns a widget company. She wins the presidency of the United States. She follows the rules and removes herself from any control of her company for the duration of her presidency. She is promptly charged with violating the emoluments clause because foreign nationals are able to walk into a store, and buy her widgets for the going price, or they can buy them online. No other similar store denies service to foreign nationals.
“Why,” she asks. “Because you sold a Saudi a widget. You owe him.” “Well, yes. I owe him the widget that he paid for, and nothing else.”
How can it violate the emoluments clause if Trump has:
1. removed himself from control of his company
2. Foreign nationals are charged the going rate for rooms.
What are the Trump hotels supposed to do? Deny service to foreigners? If they did so, there were be cries of racism, instead.
This is a ludicrous harassment, and an expensive waste of everyone’s time. WE, the taxpayers, have to pay for this.
We have more important matters to focus on than pretending that owning a hotel equals bribery.
Sorry, but you can’t look the other way while Bill Clinton got far more than the going rate for speaking fees from foreign governments with business before State while Hillary was SOS, and then claim that owning a hotel chain for which you have ceded authority, charging anyone who wants the going rate, is bribery.
Disturbing.
Didn’t that just get kicked out not to long ago? How many of these rogue circuit judges in their black uniforms get to play like they are some kind of God and get to do more than bumping their recommendation to a ful circuit majority? Just like a bunch of socialists except this case internationalists acting as nationalists.
“Legislation From The Bench”
“… men…may do…what their powers do not authorize, but what they forbid.”
Justices and judges create extremely lucrative and comfortable careers out of nothing, out of orders of magnitude of prevarication.
The charge of the judicial branch could not be more simple; they’re not “interpreters,” they’re glorified clerks merely comparing facts and rules. If government in America ever becomes rational and coherent again, they must be impeached and convicted for abuse of power, corruption, malicious usurpation and, yes, treason against the American Constitution and thesis. The singular American failure is the judicial branch with emphasis on the Supreme Court, the sole charge of which is simply to assure that actions comport with statue and fundamental law.
__________________________
“… men…may do…what their powers do not authorize, but what they forbid.”
“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“[A] limited Constitution … can be preserved in practice no other way than through the medium of Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
Not to worry, Bill Barr has got this.
I think they are letting it stay alive for some unknown reason. Mandamus is rare, but this seems like a case for it. The lower court is dragging its feet.
Squeeky Fromm
Girl Reporter
I have no problem with the case going forward as long as the effort required to defend it does not interfere with the duties of the Presidency.
I am not a lawyer so I must go be definitions I just read. Isn’t denial of an Interlocutory Appeal the exact case where the only remedy is mandamus granting the hearing of that appeal?
Has the lower court explicitly rejected the appeal on its merits?
If no judge has judged the merits of the appeal, what are these procedural things accomplishing?
If it has been judged then the appeal to a higher court is the only remedy.
What am I missing?
“What am I missing?”
The Obama puppet master.
4th Circuit not surprised. Trump will appeal and win on appeal eventually. Just more of the same of the Trump haters and DEMS.
This is so narrow that I still am not sure what the issues are. Sounds like they are kicking the can down the road.