Bench Memos

Law & the Courts

Divided En Banc Fourth Circuit Gives Go-Ahead to Emoluments Clause Lawsuit

In an opinion today, the en banc Fourth Circuit ruled by a vote of 9 to 6 that President Trump was not entitled to have the Emoluments Clause litigation in District of Columbia v. Trump dismissed. The court divided along ideological lines.*

The majority, in a rather brisk opinion by Judge Diana Gribbon Motz, held, first, that Trump was not entitled to a writ of mandamus ordering the district court to certify its orders for interlocutory appeal (pp. 8-15). (District judge Peter Messitte’s refusal to authorize an interlocutory appeal on issues of such importance is highly suspect and reeks of gamesmanship, as it required that Trump meet the much higher standard required for a writ of mandamus.) The majority ruled, second, that Trump was not entitled to a writ of mandamus dismissing the action (pp. 15-18).

Judge J. Harvie Wilkinson (pp. 26-61) and Judge Paul Niemeyer (pp. 62-105) each filed lengthy dissents, and Judge James Wynn (pp. 22-25) wrote a separate concurrence to object that the dissents “disparag[e] the judges in the majority as political hacks.”

Here is an excerpt from the opening of Wilkinson’s dissent:

It is clear and indisputable that this action should never be in federal court. The legal foundations for this lawsuit are non-existent. It is a fanciful construct that invites the courts to create rights and duties from thin air. It allows an action to proceed that seeks to enjoin the President directly for official actions while in office. It opens the door to litigation as a tool of harassment of a coordinate branch with notions of competitor standing so wide and injury-in-fact so loose that litigants can virtually haul the Presidency into court at their pleasure.…

Consider the insouciant spirit that guides this litigation. It’s all make-it-up-as-we- go-along. We are proceeding under constitutional emoluments provisions that confer no right, provide no remedy, and lack all guidance in precedent and history. In so proceeding, the majority ascribes to the courts a lawmaking function that has been committed to the legislative branch.

We move forward to who knows where by leaving Congress, our most democratic branch, on the back stoop in the cold. One would have thought that an assault by the judicial branch against the powers of the executive would at least take place with some democratic imprimatur, with some cognizance of the legislative branch. But our solitary status leaves us undeterred.

We look in vain for evidence of Congress’ whereabouts. There are no congressional subpoenas in this case. There is no congressionally created cause of action. There is no word from Congress on what an emolument might be or even the framework in which it should be assessed. There is no recognition given to the powers of Congress to include emoluments abuse in articles of impeachment or to require disclosure by statute of whatever emoluments are thought to be….

Not only is no right conferred upon these plaintiffs in the Bill of Rights or elsewhere; the nature of any remedy is nowhere set forth. Not knowing what an emolument even is, we can hardly fashion a remedy to what by pure guesswork we are supposed to enjoin. If it is the Trump Hotel that gives offense, are we to order its closure for the duration of the President’s term? Or are we to command divestiture of any presidential interest, beneficial or otherwise, notwithstanding the fact that divestment is traditionally disfavored in equity? Are we to place this single asset in some sort of not-so-blind trust? Are we to enjoin foreign dignitaries from patronizing the Hotel? Are we to bring in some third party to manage the Hotel’s ongoing operations? I have not the slightest idea. Nor am I comforted in the slightest by the majority’s assertion that this all lies somewhere down some road.

I don’t know whether Trump will seek immediate Supreme Court review of the Fourth Circuit ruling, but one way or another I doubt very much that the Court will allow intensive discovery, much less a trial, in this matter to proceed.

* On the Fourth Circuit, the ideological lines are not the same as the lines between judges by party of appointing president. In an unrequited act of goodwill—or an outright blunder—that has had high costs, President George W. Bush appointed liberal Roger L. Gregory to a lifetime seat after President Clinton had recess-appointed him to a term that would have expired at the end of 2001. Gregory is now chief judge of the Fourth Circuit.

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