On May 14, 2020, the United States Court of Appeals, sitting en banc, by a 9-6 decision, overturned the decision of a smaller panel of the court, to allow the case to continue.
The District of Columbia and the State of Maryland (“Respondents”) filed the action in the District of Maryland against the President in his official capacity. They allege that the President is violating the Foreign and Domestic Emoluments Clauses of the U.S. Constitution by accepting prohibited “emoluments” from foreign and domestic governments. The Foreign Emoluments Clause provides:
“No Title of Nobility shall be granted by the United States: And no Person
holding any Office of Profit or Trust under them, shall, without the Consent
of the Congress, accept of any present, Emolument, Office, or Title, of any
kind whatever, from any King, Prince, or foreign State.”
U.S. Const. art. I, § 9, cl. 8. The Domestic Emoluments Clause provides:
“The President shall, at stated Times, receive for his Services, a
Compensation, which shall neither be encreased nor diminished during the
Period for which he shall have been elected, and he shall not receive within
that Period any other Emolument from the United States, or any of them.”
Id. art. II, § 1, cl. 7.
The district court granted the President’s motion to dismiss, except insofar as the complaint pertained to the Trump International Hotel three blocks from the White House.
The President moved for certification to take an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), seeking appellate review of four questions: (1) the correct interpretation of the term “emolument”; (2) whether Respondents had an equitable cause of action to bring the suit; (3) whether Respondents had Article III standing; and (4) whether any court has the ability to issue equitable relief against the President in these circumstances.
The district court declined to certify an interlocutory appeal.
In response, the President petitioned this court for a writ of mandamus. He asked the appellate court either to direct the district court to certify an interlocutory appeal or to order the district court to dismiss the complaint with prejudice. A panel of this court granted the President’s petition for a writ of mandamus and found Respondents lacked standing and so “reverse[d] the district court’s orders” and “remand[ed] with instructions to dismiss the complaint with prejudice.” In re Trump, 928 F.3d 360, 364 (4th. Cir. 2019).
The entire Fourth Circuit subsequently agreed to hear the case en banc, vacating the panel opinion. In re Trump, 780 F. App’x 36 (4th Cir. 2019).
In her decision for the majority , Judge Diana Gribbon Motz explained that a petitioner seeking mandamus relief bears the burden of showing that he has satisfied three requirements. Judge Motz explained the Supreme Court gas repeatedly rejected contention that a naked error of law amounts to an abuse of discretion entitling a petitioner to mandamus relief. In this regard, Judge Motz said notwithstanding the President’s vigorous assertion that the court erred in its legal analysis, he does not contend that the district court denied certification for nonlegal reasons or in bad faith. As a result, he is not entitled to a writ of mandamus compelling the district court to certify its orders for interlocutory review under § 1292(b).
The court rejected the President’s secondary argument. The President contended that, even if the court “conclude that the district court’s certification discretion under § 1292(b) was sufficiently broad that a writ of mandamus directing certification is unwarranted,” it “nevertheless should grant mandamus directing the district court to dismiss [Respondents’] complaint.” Judge Motz ruled to obtain this relief, the President must establish that it is not merely likely, but “clear and indisputable,” that the entire action cannot lie. She found he has not done so.
Judge Motz did not agree with the President’s argument that “emoluments” indisputably include only “profit arising from office or employ” (that is, payment for services rendered in performance of a formal job) and explained courts have not ruled on whether emoluments include income from the President’s business (e.g., his lease on the D.C. hotel).
Judge Motz rejected the President’s argument that the court must issue a writ of mandamus because this suit subjects the Executive Branch to “intrusive discovery.” Judge Motz explained that the discovery in the instant case — business records as to hotel stays and restaurant expenses, sought from private third parties and low-level government employees — does not implicate Executive power. The court does not believe the requests pertaining to spending at a private restaurant and hotel threaten any Executive Branch prerogative.
Judge Motz disagreed with the President and dissenters over the fact that the separation of powers give the President discretion with respect to having to abide by the emoluments clause. Rather than vesting the President with any duty to execute the law. they foreign emoluments clause impose restraints on the President. The dissents disagree, arguing that this duty is not only an official executive duty, but also one that encompasses the discretionary function of determining the meaning of “emolument.”
In response to the dissenters, Judge Motz explained the idea that the President is vested with unreviewable power to both execute and interpret the law is foreign to our system of government. The Framers dispersed the authority to enforce the law and the authority to interpret it. Otherwise, the President alone has the ultimate authority to interpret what the Constitution means. Allowing the President to be the final arbiter of both the interpretation and enforcement of the law — as the dissents would — would gravely offend separation of powers.
The dissenting opinions are more than three times as long as the majority’s and characterize their colleagues in the majority as “partisan warriors.”
A Department of Justice spokesman confirmed that the President would appeal the case to the Supreme Court. If the Supreme Court accepts the case, the arguments may occur in the fall, at the height of the Presidential campaign.
In a separate case at the U.S. Court of Appeals for the D.C. Circuit, the court dismissed due to standing an action by the Democratic members of Congress. They have decided not to seek a rehearing by the full complement of judges. They have until July to decide whether to ask the Supreme Court to review the appellate court’s decision.