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