Transcripts For CSPAN Fourth Circuit Emoluments Oral Arguments 20240713

Watch live coverage of house rules tuesday at 11 00 a. M. Eastern on cspan3. Watch online at cspan. Org impeachment, or listen live with the cspan radio at. The fourth circle Circuit Court of appeals listened to arguments, which bars president s from receiving gifts from foreign governments while in office. The president illegally profited from dignitaries staying at the trump hotel. A threejudge Panel Previously found the district in maryland did not have standing to bring these lawsuits. The courts decision will determine whether the lawsuit can move forward. Oh yay, oh yay. The court is now sitting. God save the note states in the United States in this Honorable Court. The District Court committed multiple errors in refusing to dismiss this suit and plaintiffs can i ask you to speak up just a little bit . Bring the microphone a little closer if you can. And the plaintiffs are fundamentally mistaken in asserting that this court is powerless to correct any of those errors at this time. Two we have identified different paths where they can grant relief, but theres one point of central importance. That is this. The Supreme Court made clear separation of powers are taken, are of utmost importance when considering petitions involving the president of the note states. For example, the Court Appointed chief Justice Marshall to say in no case with the court be against a private individual. And the court said the high respect do the office of the president must be considered throughout the entire proceeding. What does that imply in this case . The following. Their position is that even if the District Court aired in defeating debts refusing to if everyhe suit, even ,udge agreed there was air their position is that this court is still powerless to do anything about it, that the president must go through litigation and be subjected to discovery and personal finances and only at the end of all of that can he take an appeal from final judgment, which would probably be dismissed. Itcan i ask you i thought was your burden to show that you were clearly and indisputably entitled to mandamus. I thought that was one of the three requirements of that. Is that not so . That is correct, your honor. So it is not they are saying you havent met that. It is you having demonstrate that you have met that. Right . You are part right and part not right. It is true we have the burden clear and industry billable right. There distribute their position is that even if they were wrong, if every judge were to agree, their position is we still cant get a release. That is their position. But youre skipping a step. You have to meet your burden step that shes asking you about. Im happy to do that. They have i think we have to talk about your burden because you would agree with me that mandamus is externally relief. It is, your honor. You are entitled to this absolutely. What i wanted to say at the ofset, we have two means showing mandamus. Let me interject. Why dont you distinguish this case from what the d. C. Circuit judge d did in a similar setting . Where they sent it back. I will answer both at the same time. I dont think there is a material distinction between what the d. C. Circuit judge and what circuit did and what youre asking. They said they clearly abused its discretion. Without deciding whether it could grant mandamus, it told the District Court, why dont you just reconsider . I dont think that a material distinction between ordering the court you ever and errored, and telling the court, why dont you consider it . You seem to think theres a fault in considering mandamus relief. Thats why the question is well taken. Persisthy, im sorry to , maybe you can explain why you meet the requirements for getting it. Prompt. , the first let me say one last thing. They are related. The reason i dont think theres a difference is because if you tell the District Court they have abused their discretion, only two things are going to happen. Willsonable District Court follow the instruction and grant certification. A in transient District Court will thumb their nose. They need more to get mandamus release, you recognize that, dont you . Thats the first prong. Clear and the first right is different than an abuse of discretion. An abuse of discretion, but not a clear abuse of discretion. I can review the quote. But youre still skipping the first step. The first step is that you have to demonstrate a clear and industry billable right. What is that clear and indisputable right. You must think you have one. I have two. Id like to hear one. If you can answer, what was the court legally required to do that it did not do . What did it have to do that was not done in this case . I think our simplest explanation to all those questions is we think it is that you indisputable cannot sue the president of the United States in his official capacity without having an express statement authorizing such a suit by congress. We think that is clear and indisputable that the Supreme Court has thrice held exactly that. I think thats your glass on what the courts held, but we know from current litigation involving similar issues, several coats courts have allowed suits against the president to proceed. How can it be clear and indisputable . Respect, it is not change the fact the president is clear and indisputable. What they said in franklin was whether the president was subject to the procedures act. Agencies andvers it defined agency as any authority of the government of the United States. That language didnt especially include the president , but nor did it exclude the president. It reasoned in light of separation of powers and the unique role of the president , textual silence was not enough and you needed an explicit statement of congress before they could be express could i go back to the standard . You said there was a clear legal error. Is it your view mandamus should issue, since theres a clear error . Thats the standard we use on direct review. I dont think anyone thinks we should grant mandamus on that ground. Theres a threepronged test showing clear and clear abuse of discretion. Indisputable right. I think you take that out of context from cheney. I know the quote youre talking about, but its in a paragraph in talking about how this is a drastic remedy, traditionally used to ensure a District Court has not usurped, or gross abuse of authority, usurped the power it doesnt have, gone outside its jurisdiction. I think saying clear error is not the equivalent of what youre talking about. I would be happy to accept those formulations because we think those apply when you have a suit against the president that is categorically foreclosed by Supreme Court precedent. Let me point to this Court Advisory as president. Dent. Ece that is the sort of clear usurpation that warrants mandamus review. As i understand your position, you have a clear and indisputable right in this case are seeking to usurp over the president of the United States on authority that has never been asserted or claimed to before. That is absolutely right. The point i was trying to make is that if it is a clear usurp a antion of a federal agency, agency exercising the president s executive power, then surely it is a clear separation of jurisdiction to talk of the bed, himself. The president is the chief executive. He referred to franklin versus massachusetts and cited it, i think, accurately, but that left open a suit against the president for a ministerial act. And theres some other cases, clinton versus new york and the d. C. Circuit judge against president nixon. If you could address whether you think the relief being saw is ministerial or discretionary, i would appreciate your position. First, i dont think this is ministerial within the meaning of those cases. I think the argument it is is making the precise error the Supreme Court rejected in mississippi versus johnson, they said it was ministerial. The president could not act unconstitutionally. The challenge was the certain reconstruction acts were unconstitutional. Of course you have to comply. Its that ministerial duty. The Supreme Court said no. Thats not what ministerial means. The question was if there was any discretion. If there is a dispute, that is not ministerial. Its executive. The second point i would make about this, that question is about whether it would be constitutional to allow a suit against the president. Theres an antecedent step i think is important. At a minimum, before you have to decide that difficult question, at a minimum, congress should have to authorize such a suit. Congress should say the president can be sued for ministerial acts. Thats a point of the requirement in franklin, the point of the requirement in nixon versus per gerald, and principles. Voidance whether the court construe an implied action and equity for the first time to the to present constitutional question . This court avoids constitutional question. That follows basic questions of equity. Theyre relying on common law equity power to join federal officials. There are two things about that. They cant assert such a history with the president. Its always been lower officials second, the scope of the traditional remedies have to be informed by history. The whole point of the decision is that if youre trying to extend a traditional remedy, that has to be done by congress because of separation of powers. If thats true in group a mexican honor, where it was over creditors to file suit, surely it applies to whether you can extend a cause of action for lower federal officials to the president of the United States. Were treating this as if its some runofthemill case. And it is not that. The jews theory is asserted the gst sherry the judiciary is asserting power over the United States, in an unprecedented way. Because you can understand the role of the judiciary in a case like United States versus nixon, where the courts were aiding in enforcement in a judicial subpoena in a criminal action, and you can understand cases where the courts have stepped in to vindicate rights that have been infringed by government. But this is neither of those. There is no direct the government is not acting directly against any individual. Weree not seeking not confronted here with enforcement of a judicial action. In a criminal whats being asked her eis ju unprecedented,ly that we are asked to create an action on our own. We have no history to guide us. We have no precedent to guide us. No remedy has been spelled out. And in the face of all of those things, we are to proceed alone to tie down the presidency in litigation. That is an excellent summary of our arguments. I can say in addition there snowquester there. There is no question there. Can he answer my question . If you heard a question, please answer it. I think i would say is, if all of that is not worth mandamus, im hardpressed to understand how this court can say, merely trenching on executive agencys jurisdiction is enough to warrant mandamus review. All the litany blows out of the water the case an answer to the question. Understand what he said, youre saying you agree with the. That this is the sort of thatnal reusurpation warrants mandamus relief. There is no Historical Authority to have cause of action. To do all of this and not allow an appeal is not only the question goes beyond whether or not this is something that has separation of power. Is he about the law . The allegations here are essentially discoveries start from third parties, primarily businesses. Its not a prerogative of the executive branch. In order to tie that in, you have to ultimately say whatever the president does puts him above the law and out of the reach of being able to deal with issues that may be there. Let me ask a fundamental question. They have been given a denial of certification and i dont know another case that has done it in this fashion. He talked about the 10 circuits that dealt with, no one said a District Court can be taken over by Appellate Court. They cannot usurp power. Congress spoke. And it really comes down to a congressional word. Let me finish. And in an instance of a District Court saying denial of certification in that instance, theres no precedent for what happening here today. Thats not true here. There is one circuit. You would have to agree, though, where the weight of authority is against you. [laughter] theres no precedent for this. The weight of authority, those entirety let me say a couple of things. Is one circuit that has done exactly what weve said, the 11th circuit in the fernandez case, where they directed a District Court to certify. Their only distinction is the District Court hadnt yet ruled on the motion. Let themcircuit didnt exercise discretion. They thought it was obvious they directed it without giving the court a chance to screw it up, which is what the District Court here did. Point two, it is both the d. C. Circuit judge per lawsuit and the fifth circuit in them appellate case that has done the equivalent. They said the District Court abused discretion and remanded for the District Court to reconsider. Now, on this, i have a hard time understanding how any reasonable District Court judge in the face of that order would do anything other than what the judge in deseeded, which is turner d. C. Did, which is turnaround and certify a judge who could care less that a panel on this court said he abused discretion. Sent back to the District Court . That wasnt done here . I think the panel was absolutely right that it is pointless to remand it to the District Court how do we know that . All we know is the district can thumb its nose at the court. Do you have any case with a court of appeals used mandamus as a vehicle to order a District Court to dismiss a case . Inso, mandamus case of ordering a District Court to dismiss a case. The point of the District Court case was it should have been remiss because it could have been in the jurisdiction. Im saying it went through all the hoops. It did everything it needed to do for certification. The case was before the District Court. It wasnt a question it should have been in another form. Our point was it should be in no forearm. Forum. It errored in dismissing and putting into agency. It said nope, the case should go to the agency. It shouldnt be anywhere. Taking substantive action. Youre saying this court can use mandamus to decide in issue in the case, essentially because it disagrees with what the District Court did. No, your honor. I agree it has to be a clear and indisputable legal violation. How did the court usurp its authority . You havent told us that. If a District Court takes jurisdiction over a case in front of administrative agency, this court and the Supreme Court recognizes that usurping jurisdiction. Has there been a case can we point to any case where the judiciary has asserted the power to adjoin the president of the United States in the exercise of his official duties . You can call it ministerial, color discretionary. What president is there for the courts to step in and adjoin the president in the exercise of his official duties . And where is the limiting and support to that . The only case i am aware of that has done such a thing is in 1970 the three times the Supreme Court has considered this issue of whether you can have a suit against the president for his official action, three times it has come up and three times the court rejected it. It said it was illegal. In franklin and nixon, congress had to speak clearly. It is the case if the court can protect an evocative executive agency that question raises the issue of redressability and the scope of any remedy against the president. Thate making an assumption would be the actual remedy, an injunction against the president. If i understood the Second Circuits opinion, they send out a number of different possibilities, possible remedies, including an injunction not against the president , but against the Business Hotel itself or third parties that might be providing services or paying for services. That may not result in an injunction. I dont think asserting the president is im responding to the point of whether or not, if the case goes that far, but its not necessarily the case that any remedy would insult result in a direct injunction against the president. That may be true, your honor. But the point that i made, it doesnt matter what the precise form of relief is, whether injunction or relief. The point is none of that can run what is the remedy in this case . The violation that you allege, what is the remedy . Before you get to whether there is a remedy im just talking about if you deny the fact there is no judicial remedy, what remedy is there to control at the very first step, congress presumably authorized someone to sue the violation. And then we can have interesting and different constitutional question of whether thats permissible. Congress hasnt even done that. The bare minimum, the separation of powers say this court should not allow a suit to proceed against the president where congress hasnt other to authorize suit in the first place. Right here, right in the center. Clause, firstnts it provides compensation for the president. So its a provision. The other is the prohibition of extra compensation. What if congress decided to reduce the president s salary while hes in office . What would be the remedy for the president . Interesting question, your honor. I havent thought of it. You have to be because you say and categorically that an unprecedented suit. You said congress hasnt provided a remedy. These are Just Congress congress would be the one acting against the president s rights. What the courts be the place he would have to seek remedy . I would say the same thing as a high level of generality. The question would be, is that suit authorized . He would have to ask if theres jurisdiction, cause of action. I dont know the answer. There are a lot of statutes that govern whether you can pay the federal employee. There would have to be an answer. Even the judges themselves would have to go to the court ash that might be the case. Involvingre cases of constitutional provisions outside the bill of rights that beve been held to t nonjusticiable. The incompatibility clause, the impeachment clause, the receipts clause. So, there could be socalled infringements to all these causes. But there are many clauses that are structural or outside the bill of rights that the Supreme Court has held to be nonjusticiable. Thats true, but we dont have to go near that far to say that at a minimum, before you have a lawsuit, maybe congress should authorize a suit. If i could make the last point about the body of i dont want to miss this. Even their best cases, take the seventh circuit case in ford, even that case recognized that their has to be some safety valve if the District Court of uses discretion in denying 1292b. For the sake of argument, there might be a way to direct mandamus in a situation like this, says nothing about indiscretion. Talked about improper motive, egregious situation. There cant be indiscretion because you need to demonstrate clear, indisputable right. That is not the language in cheney. You dont think you have to have a clear and indisputable right . I think clear and indisputable legal right or discretion, its not like mandamus is limited to legal errors. Is that the way he described the ruling . Because i read the opinions with some care. What i saw was a recent exercise of discretion on this opinion question. And i totally understand you have a goodfaith disagreement in this room to debate these issues. But the idea we are a roving commission where were going to grant a petition, if someone can say the agreement screwed up their case, it seems to open the door wide. All i can say is i dont know how you can reconcile that proposition. They did exactly that. They thought the case was in the wrong forum. Nobody thinks this was filed in the wrong forum. Its even worse if you sue the president when he cant be sued anywhere. It makes no sense and that is your position, the president cannot be sued anywhere. Without express authorization by congress, we cannot be sued for his official actions. I think that is correct, your honor. Nature is the official of the action of taking money from foreign governments . Tim a watts official. Tell me what official. I think thats best directed to plaintiffs. Im asking you. Im interested. The reason is the inline it requires any officer covered by the emoluments clause to not accept them. Office, it the is by virtue of office he cant accept these payments. It is true it involves his financial behavior, but the only reason his behavior is subject to suit is because he holds office. Thats why its an official duty. Thats why they sued him. If you disagree, we have an easy solution. Im not saying i disagree. But you do have a clear and indisputable right in the suit under a clause that confers no right. The emoluments clause confers no right upon anyone, and yet we still have a suit against the president under a clause that confers no right and provides no remedy. And i say once again, this is an overextension of judicial supremacy over the office of the presidency. Its unprecedented that we would have something that is not in a provision that is not in the bill of rights, where there is no direct evidence that the president has directly harmed anyone, and that a suit is re upated, essentially, we here making it up. Were winging it. Theres no history that authorizes it. Theres no precedent that authorizes it. There is no right conferred that authorizes it. Theres no remedy set forth thereof rises it. We are that authorizes it. We are winging it. Rails s off the isnt of the rails, i dont know what is. They are on a search of congressional appeals, closer questions. this on this ones a lemon. Its the weakest of a cases springing up like tims and we. Others week. D. I hold no brief for the conduct of this president or any president. What i do care about is the future of the judiciary and whether we should be asserting an authority with such a slight and unprecedented foundation, as is continued here. I agree. I think that under cheney, it would make a mockery of respect, which must be considered at every stage. No president has done this. Essentially, what youre saying, as i understand, we have an emoluments clause. Thats the law. But a president can violated in inry incidents violate it every instance. You could have interest in dignitaries openly to come in and take 500 rooms of maralago. You can do all of these things. At the end of the day, youre saying theres nothing you can saidout a president if you because this is in light most favorable violated it in every instance. But youre saying nothing can be done. Is that correct . My question is, is that correct . Nothing can be done to remedy a president who openly, without any inner reservations, violates the emoluments clause, nothing can be done because he is above that law . Is that correct . No, that is not correct. It is a law . The law stands right now, just to amend what the judge is saying, is there anything that can be done . Not in the judicial remedy. And that does not make him above the law. That is what cheney and nixon versus how about this situation . Where we know that the president holds personal disdain for the emoluments clause is. S. Emoluments clause he said there are phony emoluments clauses and the president takes an old to protect, preserve, and defend the constitution. Emoluments es phony emoluments clauses. What is the right newman remedy of that . I think he is calling the claims phony, not the existence of the emoluments clause. He called them phony emoluments clauses. I understand, but it was either a tweet or a in philadelphia, not the bill 1787, they have never been amended. Nobody is disputing they exist and nobody is disputing they are important. I think what he is saying is that these claims are phony because these claims are without merit, which im happy to get into the merits. I know and well over my time. It comes down to the bottom line with respect to the d. C. Circuit judge, is it your view, when they face the mandamus question and send it back to the District Court, was that an erroneous decision or simply an alternative form of relief . I think that was a permissible exercise of discretion. I think they could have done what we are asking the court thats permissible, then there wasnt a clear and in despair indisputable right no, i dont if theres no clear and the d. C. Circuit denied it without prejudice. But they didnt grant mandamus relief. There was no error. No, they denied it without prejudice. I feel confident if the District Court thumbed its nose at the panel and said, not certifying it, we would have a good chase of getting mandamus. Then the question is why. Why would you construe a federal statute to put a pellet courts just records and that Appellate Courts in that situation . And just hope the court doesnt have its nose . My friend has a question. We listened to argument for several minutes, but you still havent told us what action was the District Court legally required to take . The theme throughout your argument is the District Court was wrong because there isnt a cause of action. Thinkre are two things i is clearly legally required to do. One, we think it should have dismissed the suit for a multitude of reasons. You disagree with what they did . Clear how is that usurping his authority . I hate repeating myself, but the same reason it was usurpation of authority to maintain jurisdiction over a case. Do you have any other authority . Its silly for us, as judge keenan pointed out, what might be a distinguishable factor between this case and so. You have no other authority . What i was going to say, and maybe judge harris disagrees, in the four case, when confronted with the pattern, what do you do if a District Court have dismissed or should have certified the court . There might be a possibility that what you might do that what you do is mandamus, straight out denial of the motion to dismiss. I agree its not a holding, but even there cases recognize that. I think theres good reason. Imagine a simple hypothetical, the facts of the fifth circuit case. Imagine if you had a court that said the following. I know circuit precedent has been filed. Clear as day. That is not what the District Court did here. You might not agree with it, but it is no flat dash opinion. What they are saying is that even in my hypothetical, no relief. Even if the District Court flouts president and says i dont care. Your turning the argument on its head. Youre saying no matter what they did, youre entitled to mandamus relief. No. Im saying if it was a reasonable conclusion, then i agree we dont get mandamus. If you think of what he did was reasonable, im not going to get your vote. You have to have a clear and indisputable right, not just and reasonable. For all the reasons i said, i think it is clear and indisputable. If your honor disagrees i think thats your strongest position is that this goes so far beyond previous exercises of judicial authorities and the suit has such a Shallow Foundation there is a clear and indisputable right to have the case dismissed. Thats right, your honor. Are you familiar with the schlage enough case . Not enough to say yes, but i know what court youre talking about. They defined a writ of mandamus similar to an cheney. But it focused that the writ is appropriately issued when there is a usurpation of power or a clear abuse of discretion. And your argument, as i understand it, is both there is a usurpation of power by the District Court in taking cognizance of these cases, and in refusing to recertify when the district course said there is no disagreement about its conclusion in this case. It basically said it was right and no one can disagree with me. To circle back to judge kids question, because you asked judge keenans question, because you asked what the error was. One, it was clearly wrong to not dismiss the case at right. Secondly, it was clearly an abuse of discretion. T, it isudge pointed ofu at a minimum to not have said these questions are substantial enough to warrant appeal. Virtually everything they are arguing is unprecedented. Not only is it unprecedented, most of it is in Supreme Court precedent to say it is not even a substantial legal question that warrants intermediate appellate review in a case where is the president , where the Supreme Court said repeatedly that the respect to disher he owes him should be in the proceedings, including mandamus. The idea he cant get immediate appeal to determine whether a suit should be dismissed in confronting this issue, basically postponed the immunity question, which were going to address next, in order to prevent appeal, for connection with the certification, basically entered the core question, is there a substantial ground for a difference of opinion on this . And the court said no. Even though the courts decision had zero precedent. Less than zero. It was squarely in the teeth of the only other case that addressed the issue. They agreed with us there was no standing. Thats the only case it had against it, or available at the time. And it basically still said there was no reasonable ground for disagreement, saying the Second Circuit District Court was and on appeal, the Second Circuit reversed that and this Court Reversed it. We have dueling decisions. The idea anyone could say thats not a substantial legal question that warrants review d. C. Circuits saying they certify in a similar context was a clear abuse of discretion. Clear abuse of discretion. I understand its not this case. I understand im saying a hypothetical. But there legal position would mean even if the District Court said im not replying president , i dont precedent, i dont think the president is long, certification is denied. Their position is nothing this court can do about it. Dont have a case because the underlying opinion has been vacated. What do you say are the official duties that would be impaired if the climbers did get . What would be the official duties to be impaired . There are two different aspects to that question. In terms of the relief, its imposing restrictions, whether through injunctive relief on financial arraignments because he holds office. Lets not skip to relief. I think a significant , if there was relief tell me, if there was relief, what would be impaired . I just told you what difference would it make if he got to relief . Hes been penalized to cash what official duties would be impaired if requested relief was granted here . I will say it again. Theres nothing more i can say bit if thats not a penalty on official action, your honor, if someone told you you could no longer be a federal judge unless you gave up your money, most would think that is impairing your official actions. That isnt relief requested. I wouldd be happy be happy to hear what relief they are asking. Stop doing what you are doing, to be injunctive. What about that . Injunctive relief. Say you cant do it anymore. Dont worry about what youve done. What duties are going to be impaired . I cant give you a better answer for what i give you. The other thing i can tell you, you have to remember there is litigation before we get to release. The discovery i have to go back to what you said to judge when about asking him, telling him he cant be a federal judge unless he gave up his money. Its not. Its telling him he cant use his federal judgeship to make money. Thats what were talking about. Fair enough, and thats still encouraging on his official power. Its restricting his ability to engage in Financial Transactions used his presidency to make money. Thats not an accurate description of the facts. Im just saying what you said, to judge wynn, is not accurate. Thats not fair enough, your honor. Whatever the theory of what a million men is, their point is because he holds office, he cant engage in certain financial behavior. Thats encouraging on his official power. Thank you. Counsel. Thank you. Thank you, your honor. Good morning. It may please the court. I want to start why mandamus is not appropriate 1292b. Of course, thats one of many issues in the case. If this goes further, we should deny the case for dismissal because the cause of action to seek Equitable Relief against the president under the emoluments clauses adequately stated a claim the president is receiving in my meds through the Trump International hotel. Its an with 1292b, limited exception to the rule. When congress contemplated it, it had a proposal that would lock appeal at the description of the court of appeals. Thats what we see in 23f. Congress rejected that at the recommendation of the judicial conference. What they wanted was a rule the required both the District Court and court of appeals before an appeal to be taken. Let me ask you as i asked your opposing counsel in the d. C. Circuit judge in a similar setting. The d. C. Circuit judge determined the District Courts order in that case, orders, squarely met the criteria for certification and abused its discretion in not certifying the case before sending it back. So, was that an erroneous decision . How was it different in this case . I do think it was erroneous in this way. When the district, court declined to certify that is the, that is the first and last case on the matter. It did not take jurisdiction under 1292b. All it did was send it back to the court. If this Court Disagrees or thinks the d. C. Court got it correct, thats the most this court could do. They did say failure to certify was an abuse of discretion. If you look at 1292b, it has three requirements, only one of which is a core requirement, that there is a substantial ground for a difference of opinion. The other two, it has to be a controlling question of law. Nobody disputed that. It has to advance litigation. The core question is whether there is substantial ground for difference of opinion. If the court finds that is so, it must, not may, must certify. The statute is mandatory. The notion that you say the court can just look at this and say i choose not to do it is not on the table. Structure, and the question is whether the District Court adequately address the question, whether there is substantial ground for difference of opinion, and the District Court and the panel concluded the District Courts misinterpreted that, or misapplied that, or ignored it. And therefore, should have certified. Suggested to send it back and the d. C. Court suggested to send it back and have it certified. They argued last week in the d. C. Circuit and here, we basically said we could send it back and have it come back up, which was a Ministerial Task after we found they were denied certification. And we just applied the certification. The question is if you would wish us to follow the d. C. Practice, we have a petition for mandamus before us, we could us. B denial before we could do what the d. C. Circuit did, deny it and tell us to certify. Is that what you want . You ask a lot in your question and i want to make sure i address it. I agree it has structure. It has to meet criteria. In a thorough opinion, it went through each of the grounds advanced by the president why it was appropriate and was not of the opinion they were controlling questions of law that would materially advance litigation. And i think every court that considered the question agreed all three need to be certified. How can the Court Address a lawsuit under the emoluments clause, along which there is only one opinion in the country, Southern District and new york, which went against what the District Court said, and say theres no substantial ground for difference of opinion . It was creating a lawsuit out of whole cloth, the very arguments made here were made to the District Court. You cant sue the president. The clause doesnt create rights. It goes on and on. And yet there can be no ground for difference of opinion. And everybodys sort of shocked at that notion you can make that finding, especially when the only case is against the district judge and he says there is no difference. Why cant there be an abuse of discretion . The District Court acknowledged and gave it the back of the hand. He said without analysis thats not applicable here because it involves restaurants and private hotels as opposed to the international hotel. What he said was it was a controlling question of loss. When this question about what law applies, not apply to the facts. There is no dispute between the District Courts opinion and the ft wise opinion. It was merely how the law is applied to the facts. This comes from the mcfarlanes case. Discussion about interlaboratory appeals and mandamus and the rest. I feel we can get lost in the weeds. And before we start of on this journey, i would like to have some idea of where wed end up theres even the slightest merit to this suit at all. And the basic question i have is where in all of this suit, where is congress . And i have a feeling that ongress has just been left the back door step to just freeze in the cold. There is no congressional subpoena here as there is in some of the other cases. There is no congressionally ifated cause of action, congress were concerned about the emoluments clause. It could have an emoluments provision asserted as an article of impeachment. It could have passed a disclosure statute of some sort, with respect to emoluments. It could have established a framework that would have given the president , or whatever officeholder, some idea of what an emolument even is. But what concerns me about this is whollyat congress absent from it. Were just proceeding on our own, on our own tude, without a congressional subpoena, without a congressional cause of action, without any kind of action of any sort, with respect to emoluments. The framers put into the constitution two provisions accepting him i met. It was after this court to interpret those clauses. Congress has the ability to consent for an emoluments. It. Ut you say interpret youre asking us to schedule something of a completely lang slate without any congressional blank slate without any congressional input at all. Counseledbert jackson against a Single Branch of government, charging headlong into minors matters of the highest moment all by itself. Now, in that case, it obviously concerned the actions of the executive. Is thatmuch more true lesson in the case where the least accountable branch of government, the least democratically accountable branch of government, the federal judiciary, is charging off, on its own, without any backup or input from the legislative branch . Isnt that problematic . I have two responses to that. First is that is longstanding that plaintiffs may seek injunctive relief to force provisions. That we know from armstrong. Thats the input of congress. Econdly, we have a framework the executive branch through the havee of Legal Counsel informed emoluments clauses. Many of these structural causes are not selfexecuting. And its crucial the emoluments clause is not placed in the bill of rights, and it confers no rights. I would say most of the provisions in the constitution outside the bill of rights are not selfexecuting. It depends on something that congress has to do to get the ball rolling, if you will. And to say that we could do all this on our own, were coming to a position where our political differences, and there is a political overlay to this whole action, make no doubt, but our political differences are seeming to me to be increasingly resolved through litigation rather than through legislation and elections. And thats what youre asking us to do, which is to really undertake unprecedented assertion of Judicial Authority and as i say, were coming to the point where elections and and judicial meetings are becoming more important and we are again acting on our own. How much firmer ground would we be on if we were acting in concert with congress were arming arm in arm with congress . Instead of charging ahead with any backup or foundation. I think the Supreme Court addressed this in Free Enterprise when its head as a general matter, you dont have to look at provision by provision. In Free Enterprise, you can look the amendments, so i dont think it is limited to the bill of rights but it is longstanding where a federal officer is acting, a president by accepting emoluments that at isal Equitable Relief available to conjoin that. Dating back to a series of cases, courts have not hesitated to show federal action by officers. I think we are stating the obvious that none of those cases involved to the presidency, federal offices or state offices in general and eyes read the cases, all of those fall into one of two buckets. They fall into either the bucket, there is an underlying cause of action which we dont have an emoluments clause is and number two, they number fall into the bucket of using thegation to address defense to an enforcement action, so all those cases dont involve the president and fall into one of those two buckets which this doesnt fall into. When you turn to the precedent that relates to the president , it seems to me only a sliver of an argument is possible the notion that there is some ministerial act here, but there is no spring court case that says that squarely either. Refer to those cases, we are talking apples and oranges arent we . I dont think so. First, as the d. C. Circuit judge held, the fact there is no subordinate to sue does not act as a bar against a president. When there is the department of commerce or lower federal official, you would prefer the relief fund against them but it squarely says it would perform form over substance. That is a d. C. Circuit judge, correct . And they repeated with swan versus clinton. Wasink the Supreme Court clear in armstrong that unless congress has taken the ability to exercise check jurisdiction, it has actions by officers. Strands ofhe two your question and the case law is squarely in our favor on that. Let me ask you another question. You said there are two times the constitution deals with emoluments. There are actually three. Is it your position the definition of emolument in article one is the same in this case . Thees, there are two, foreign and domestic emoluments clause. There is also the clause that talks about the emoluments of office. I think emolument means profit. We know when they talk about the Office Office and emoluments thereof, they are tying it to an office. We dont see that in the foreign or domestic emoluments clause is so we know the framers were intending that to be given the broadest reading so those are broad provisions that prevent the president from doing what he is doing here. Your position is the emolument should be read with the same definition you say applies in article two, section one and article one, section six . The definition does not change but given context by the words around it. If you have emolument of office, it is tied to the office. When you have the foreign emoluments clause, any emolument should read that broadly. Any provision has to be read in the context of the company they keep and in the foreign and s,mestic emoluments clause they should reach any profit, game Core Advantage. To buyhe president were , bond issued by a locality for a state under your definition, it would appear the interest the president would receive on that bond is an emolument. Not necessarily. That wethis follows look not only at the text, but history and practice. We have several opinions that deal with it seems to run contrary to that. You keep emphasizing any and you have a very broad definition of that, and you just said that well, not necessarily, so how would you differentiate one state bond from another state bond under the domestic emoluments clause using your definition . I think how you would do it is to look at whether or not the president is getting any particular advantage not available to everyone else. If it is the same interest on the bond that any bond holder is entitled to, following from the , that wouldrovision not run afoul of the emoluments clauses. Receiving adent was high Interest Rate or something that was a discretionary decision of the state to give him something others werent entitled to, that would be a prophet, game Core Advantage gain, or advantage. Your definition now is a prophet, gain, or a advantage that is different than what everyone else gets . The office of how Legal Counsel have interpreted to give it context so what we know from those opinions is decisions are nondiscretionary. If the president got a drivers license, that would not be a prophet or advantage to him. It is something neutrally available to everyone else. So it is not any profit, it is only certain profits. It is not a profit, gain, or advantage when it is available to everyone. It has to be a prophet if you bought something and are getting a return on your money, it has to be a profit. The reagan olc opinion thoroughly analyzes this and says because it is something that is a nondiscretionary determination that is readily available to everyone else in that pool that it doesnt run afoul of the emoluments clauses. What about when someone comes into office and owns assets which have been giving them dividends. The hotel was in existence before the president took office and he was receiving income from the hotel before . Like anybody else who would own a hotel or motel or any other business enterprise. Does that fall into the class of available to anybody else . Was president , he was entitled to foreign and i understand, but he didnt change his status, except that i understand he is not even receiving those benefits. Hes doing something else, donated them to government or whatever else it is. Set that aside for the moment. His status with respect to the hotel is the same as when he was a private citizen and every private citizen who invests in something is entitled to receive the returns, so he held on to that asset while he is president is getting the very same absent the donation now, is getting the same benefit any other member of the public would. What i am trying to do is find out what the scope of your distinction is. The sameto me he is in class of persons who receives interest on bonds and you are saying bonds dont apply, yet income from the hotel applies. I dont know where you get that from the constitution. I respectfully disagree. What changed when he became president is the emoluments clause suddenly applies to him, which means he needs to cut off any receipts them why doesnt he cut them off from the bond interest . Question, and the this may be immaterial to the operation we are talking about. Im just taking you to task for your treating these niceties and what is an emolument and you are saying the interest on a bond is not an emolument. For some reason, i dont know why under your definition schemes to me seems to me we would cover everything else. If the interest on the bond in a fixed amount president or not is the same anyone else receives, a type of nondiscretionary benefit that the office of Legal Counsel and comptroller general has found not to be a monuments. If by virtue of becoming president and because he has made himself available to accept i want to make sure i understand all this. What is it you are asking us to do . I think this court has a wide range of injunctive remedies available. The cleanest would be to vest in from the hotel because that would with respect to a trump hotel . He would do best himself from a trump hotel. What do you want us to do in this appeal . You are asking us to rule on the 1292b question. Have some love to idea of how i am going to end up and it goes to the whole redressability, and i would like to know exactly what you are asking. Enjoin foreign business from using the hotel. You cant put a single asset in a blind trust. Do we need to close the hotel for the president s term to cut off any Beneficial Interest the president has in hotel . It strikes me these are pretty bold examples of interference without some support from congress. What do you want from us . What are you asking us to do . Gate great question and in answering, i would ask first, what is the injury you allege occurs here and tell us how does that injury get redressed . If i may take the questions in order, the judges were asking what i would like the court to do in this case and that would be to do demand the mandamus petition because it is not available that is all you want us to do . All i want you to do and as the d. C. Circuit judge, there is not a clear right to mandamus relief under the underlying dismissal. Where do we end up . You dont get on a train unless you know the destination. To answer your question about what we want at the end of litigation, relief that addresses the emoluments violation. We dont even know what an emolument is. If themolument president keeps the trump hotel open and has a Beneficial Interest in whatever remuneration comes from that, is that an emolument . I have no idea if that is an emolument and we are making up whether it is or isnt, arent we making a ruling that is going to make Public Service very inhospitable to people with a business background . People with a successful business or not so sickness successful business . Will the even want to go into Public Service if their interest is going to because off, if they are going to have the vestige or which is traditionally disfavored and some sort of firesale . Are we making the Public Sector and Public Service increasingly hostile to those with a business background . Obviously thats only one of many backgrounds that should orm governance, but we are creating hurdles for those with business experience getting into Public Service. What would happen with their investments and their assets . We are providing nothing but a gigantic cloud of uncertainty which cannot help but operate as an impediment to those with a business background seeking public office. There is a lot in your question. There are those with business backgrounds that deal with emoluments clauses all the time. That is why we have an office of Legal Counsel dealing with everyone from the president to military officials. We have context of the emoluments clause is. Is president carter in violation when he had the interest in the peanut farm . Into put his key net farm a blind trust. Im not talking the meaning of emoluments at the margins. We are talking about the president using the hotel for foreign influence. Hes keeping the hotel open at a market rate. Why is that using the hotel to do this or that or whatever . Might be a problem that you have down the road. We are deciding this case today. That is my question, we are at litigation. All we have done is the motion to dismiss. I think this puts this case much we afield of cheney and if cannot establish any aspects of our litigation of Summary Judgment or prevail, the president has the availability to come back on an appeals and raise all the questions he is raising now. Counselor, i would love for you to address judge diazs question earlier. I understand your do vestige or suggested there might be injunctive relief that you are seeking in this suit that does not run to the to adent, but instead runs corporate entity or some third party. Is that part of the claim you have made . A thirdparty injunction . It is possible. The Second Circuit had a couple of varieties. We think investment is cleanest but all we want to do is separate at foreign and domestic profits from the president. Do you need to have the thirdparties in order to have an injunction against them . The Second Circuits thirdparty injunction is curious because the president is the party in the case. We think the best teacher against the president is something that is not foreclosed by Supreme Court president and in equity to stop the act is available to us, but also, this will be framed going back to the party of this case, the thirdparty is not a party to the case. It is the president of the United States that is the defendant of the case. Thats why im not advancing what the Second Circuit had in its footnote. There is a variety of options that will be informed by the litigation and facts as they develop on the ground. I have a question about that. You noted that at the outset, and im curious if that is true or why that is the case. Mean what you say they mean and the District Court adopted your definition, why arent you entitled to relief now . What do you need in discovery to get an injunction. Weve made allegations governments have been spending money at the hotel. We have tried to determine whether those allegations if they do, we would be entitled under our definition. If the result is targeted discovery, the result is we can prove our claims and we go forward. Is, yours my question definition of emolument is any gain or profit by foreign official spending money at the hotel which you have news are, thehat say they gains flowing to someone with an interest in the hotel, you say is satisfied under your definition. , whats im curious discovery would produce for you other than you have answered the legal question in the District Courts, right . Newspapers alone are not discovery that prove our allegations. We feel we are confident we will be able to prove our allegations. I guess you dont need much. You dont need any one instance to get an injunction . That is all the more reason this court should exercise thisdiction now because could be solved quickly and the president is dissatisfied or we are, it will take about six months of discovery. That is not particularly quick. In my experience, discovery takes a lot longer than six months. This can be expeditious, which is why i think six months getting to Summary Judgment answers the question of whether the president is violating the not thets clauses is protracted discovery process i am familiar with when i look at trial records. Suggestion of the investment might be a relief that you say is the cleanest, if the president putting aside for the sake of discussion the earlier preliminary points. If that were to be done, that would be done by the president individually, correct . Absolutely, but the emoluments clauses affect an individuals private behavior by virtue of their position. Or would bestige done by the president as an individual, right . Is that what you seek and we got past these other hurdles and that was ordered . You would seek essentially an of the dayat the end that requires the president individually to do something . By virtue of the fact that the emoluments clauses apply to him. Hise is not a party in eventual individual capacity in this case. Emoluments clause applies to the private behavior of individuals by virtue of their federal office. The emoluments clauses only apply to the president as an individual because he is president ial asking him to do best the hotel or whatever the ultimate outcome might be is no different from any federal official. Opinions makec clear that the emoluments clause is apply to private conduct. That sayare opinions it was ok for the prince of prussia to give gifts to people, those are helpful but do not bind us. Certainly, but they inform the practice and we know federal officials, because the emoluments clause applies to every officeholder including all of you judges have to interact with these questions and go to offices of government ethics, figure out how to deal with misconduct. Yes, sometimes that deals with affecting your own private contact to make sure foreign and domestic officials cannot ingratiate themselves to the individual and private conduct. I am out of time but i want to get back to the fact that these this court should not reach any of these at this point because we are under mandamus petition. Proposing that if a president were to transfer his ,wnership interest to his son that would end it . Absolutely, assuming i want to lead up to something. The hotel would still be called the trump hotel, right . You would expect that the foreign officials will still spend their money there, but instead of the money going to the hotel, the money goes to the president son, right, under that relief . Yes. We have a hotel in washington called the trump hotel with profits being spent by foreign officials and profits go to the president son and the people keep coming. How is the state of maryland adversely affected by the fact the money is going to the sun as opposed to the father . Respectfully, that poses a hypothetical that doesnt it is hypothetical except that is what you are requesting. It doesnt square with the standing. Of course not, it bears no demonstrable economic effect that the state of maryland is hurt by the fact there is a dividend or a prophet of some kind paid by the hotel to the president as opposed to paid to his son. Interest being talked about in this case is the existence of the hotel named the trump hotel in washington, in competition with the facilities that are owned by the district of columbia and maryland. It is the ability of foreign and domestic officials to ingratiate the president by tendering emoluments. You think that is going to change the fact that the president doesnt get right now as a matter of fact, the president doesnt get any of those profits from the foreign agents. Instead of his donating, he gives his interest to his son. It is not going to change a thing. It is the same status quo and the state of marylands interest is so attenuated it goes to the fact that that somehow will increase the benefits to the Convention Center in maryland, and therefore the state of maryland has an interest because now, the hotels competitive interest is diminished and therefore, marilyns interest is decreased and marilyn has a standing interest marylands interest is decreased and maryland we cannot offer the ability to ingratiate individuals to the president. If you remove the president from the equation, you have we are not moving removing the president from the equation. The president can still invite him. Is a streamremoving of income that goes from the hotel to him as an owner. If we do best and have it go to his son, he assigns it to his son, it is still the hotel and he can still ask the prince of saudi arabia or whatever, you want to come stay at the hotel. Hes not the recipient of the prophets, so it is not an emolument. That personally affects maryland because his son is getting it and not him . It would cure the inability to compete on equal footing because we cannot opportunity there is no calculus in which that transfer from the father to the sun changes the competitive analysis. Thats what the Second Circuit defense says. I respect lee disagree because you assume no economic actors would change their behavior if they didnt have the president. The heroic going to the hotel so the president s son gets a prophet. Rofit. The constitution speaks to the president not getting profit. And domestic it applies to the president. As long as it is not the president. He may get a benefit from it. Let me ask this question. Even if you want to discovery, proved everything there and more mywhat was going on, understanding is the position of the president , you cant do anything about it because congress has acted so there is nothing you can do. The worst case in area, dont take the minimal scenario. Go to the worst. The president gets up there and says on the loudspeaker to everybody, if you come to my hotel, it is a good thing and i need you to come here and advertise and just be here. Nothing can be done. That is absolutely his position and that is squarely foreclosed by a long lineage of cases that allow Equitable Relief to enjoin al respectfully, it is not his position nothing can be done. This position is there is a political process whereby something can be done. His position is there is the congress whereby something can be done. His position is there is a court of Public Opinion by which something can be done. When the president wanted to peopleg7 contention, didnt throw up their hands and say there is nothing they can be done that can be done. There was immense pressure inught against an over step using that particular piece of private property for a piece of public business. That shows you that something can be done. Litigation is not the only way to getting something done. There was an immediate corrective to that business which caused the president to back off from what many in congress across party lines thought was a terribly in advised step, but it isnt fair to his position to say nothing can be done. It is just there are other avenues than this particular manufactured suit. Let me be clear, because i think judge wilkinson makes a good point. We are not talking about nothing can be done, but lets speak to reality. Essentially, it even the dor business the congress hadnt been a thing. Public opinion can be there. What im saying is the power of courts, the separate branch of governments, if you have a congress that is inactive and we can all except that is probably president who a takes goes right up to the line or over the line, this court and the courts can do nothing about it. That is why understand his position to be. Judge wilkinson, the factor might be a court of Public Opinion does not deprive this court of equity jurisdiction. The fact there are multiple ways to skin a cat does not mean this court should the constitution did not designs mechanism and with respect to the president is not to have him engaged in private litigation, but to impeach and if there is a problem. He can be removed from office or he can be voted out of office, but see the president sue the issident is a matter that unplowed ground and under the structure of the constitution, the Supreme Court has not been kindly to that. Now we have this District Court that says we can sue the president because thats what i think. Kenexa versus fitzgerald and clinton versus jones picked to this. The president is not immune from judicial process in all circumstances so here, when you are looking at something that is not the innerworkings of the official office, we are talking about things farther at the margins and expressly prohibited by the constitution. We are just back in the armstrong territory of this court equity jurisdiction to enjoin action. Todd pugh is not that the courts are powerless. The poor cannot powerless. But werts can do a lot, are a far stronger position if we just have the tiniest bit of guidance and cooperation with congress. You do things in governance in conjunction with the other branches. You dont just go it alone. We are at our weakest possible posture in this case, and i fear that we are going to be tossed whichhe partisan scrum, is unfortunate because when partisan fevers gripped the it is, it isay best sometimes for the courts to back off and say we. Dont want to be part of it. Dedicated to what we are dedicated to, which is the rule of law and i cant see how that is indicated by vindicated by a suit that is unprecedented in nature and has taken on a solo basis, we are flying solo. And writingcuting our own course of action, which the last time i checked, i thought to be a legislative not a judicial manager matter. I know i am well over my time but i have a few responses. It is not a political suit. The president has taken the unprecedented step, one taken by every other president not to quarrel with my good friend on the partisan perspective. Whatever this court does will apply to every president. It doesnt matter what party he belongs to. Is essentiallyng not just this president we are talking about. We are talking about every future president and what we do today is going to apply across the board. This is not the only instance this may come up. Kind we know that because every other president has saw guidance from the office of Legal Counsel or the comptroller general about how to order their affairs. Dear here because President Trump has not determinehere to where the mandamus lies and we are having discussions about what might happen when this case comes back to us. The council, arent we hear to determine whether the District Court has usurped its Judicial Authority . I would ask you to get us back a little bit to that point that i think is the point at issue today. It is where i started because i think it is dispositive. Every court has health mandamus is not an appropriate vehicle to demand a 1292b certification. Dualess intended for a gatekeeper. What the about what about the 11th circuit cases friend cited . Similar to the d. C. Circuit judge where it was instruction to certify. Mcclellanlies on the case, the same as the 11th circuit. When that came to the fifth circuit, it expressly said the District Court still have the jurisdiction discretion to deny the certification decision even though the fifth circuit had put its thumb on the scale. That speaks to the fact the District Court is the first and sometimes last is your view this dual gatekeeper role, 1292 seems to contemplate is absolute in every case . It is because it is a limited exception to the final judgment rule. Do we need to say that in this case . This court would have to 1292b. Rauma due it kicks to this Court Whether to take it but where the District Court was not of the opinion the 1292 criteria were met, that is the end of the matter. If the president wants to come back or in a cheney situation there is another order he finds odious, that is a vehicle of getting back to the court. Why dont we just go through rounds of discovery and the like without having the slightest idea of what remedy we want or what the source of the right is . All these other questions, it is like startingt is the journey without knowing where you are going. How many people buying airplane ticket and get on a plane and have no idea where the plane is going to land . I think i know exactly where this plane will land. Weve boarded a plane to tell the president not to accept foreign and domestic profits through his hotels. The end result of that is injunctive that is such a general formulation. It gives guidance to no one. Clear allegations are in our complaint. There are allegations that have come forth since, such as the main governor of kentucky. We have clear the initial the purpose of litigation is to figure our the plane is going to land. You never have absolute certainty in any case. In thehink we are headed direction we would like to be headed in, but we have clear the initial threshold. Thent want overplay airplane analogy, but we have gotten through tsa and we should be allowed to board our plane and see where its litigation takes us. Congress expressly mandated that in 1292 b by making it a dual gatekeeper in the litigation process, you have to have the assertion and right and a possible plane to a remedy. There is no right here. This has been confirmed on anybody by this provision. The Supreme Court has rejected that time and again. If you look at Free Enterprise, bonds, there are structural provisions of the constitution, especially state you some have been it is crucial, this particular emoluments clause was placed where it is and not in the bill of rights or in some without any rights conferring language. Just as the appointments , we believe it is a return at your size of the equity jurisdiction for structural provisions of the constitution. It is not a question this court needs to reach today because we are looking at whether mandamus is appropriate to take jurisdiction under 1292b. There isit is not, and the second or a question of whether mandamus to our right outright dismiss the case and we think that is not appropriate agreed. Dc circuit the d. C. Circuit judge said it would not wait into the question of mandamus. Im quoting what the d. C. Circuit judge. It was not going to wade into the question of whether mandamus was appropriate for 1292b. Im speaking to the secondary question in the petition which is mandamus outright to dismiss. The court said although plaintiffs have identified questions concerning standing and cause of action, he has not shown a clear and indisputable right to dismissal of the complaint on either grounds. It declined to wait into the circuit split about whether mandamus of the 1292b was appropriate, but it clearly mandamus is focused on the usurpation of judicial power. The Supreme Court has recognized you can recommend a court to get out, which is dismissal. There are two avenues for mandamus the president has thought. 1292b refused. The court the question comes up because the court made an analysis under clear abuse ofa discretion, but the question then comes, a clear abuse of discretion was exercised in a circumstance where the court usurped judicial power. The Supreme Court, for instance, in the slot in half opinion said those are the two things,. Power orn of judicial considering that question, the d. C. Circuit judge there had been not been a clear right of dismissal of the suit. It didnt get into it. To look at itourt again and the District Court certified, and it went back up and that is where it is. They took an extra step. We didnt take that step. I want to be clear about the two types of mandamus. For certification under 1292b is the dispute the d. C. Circuit judge elected not to wait into and that is the question of the court of appeals has found to be inappropriate. There is the second request for mandamus to dismiss the claim pain complaint. The d. C. Circuit judge there was no care right to dismissal on that basis. We win on both series of mandamus for many of the same reasons the circuit found on the underlying order but also because every court of appeals anconsidered the appropriate. Thank you, counsel. Inappropriate. Thank you, counsel. With theto start mandamus standard and address some of your questions about that. You are right, mandamus is an extraordinary relief and is only available the burden of showing the rate is clear and indisputable. We dont dispute that but srini cheney further said only exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion. The Supreme Court has made totally clear that an abuse of discretion does satisfy one of the problems with mandamus standard. Point two. 1292b standard. Position ised, her that no matter how flagrantly the District Court abuses its discretion under 1292b, there is nothing this court can do about it. You asked that and she answered. That is the necessary implication of her position. She has to read 1292b district this court of any power. Im not following where that is right as i understand her position. Position is we cant use mandamus to order a District Court to certify a question under 1292, but there is this alternative ground at issue in this case. We could use mandamus to order a quash a court to particular discovery. We can still get at the underlying problem if we think a District Court has usurped its Judicial Authority. She goes on to say that one doesnt apply here because there is no undisputed right. Do you understand differently . I think what i would respond to is she is saying there is no way at all to get at the abuse of discretion in the certification. As i told judge keenan, abuses of discretion, mandamus is available for it. She says something about 1292b strips this quarter of the general power in this context. Why does it matter . I thought even your opening argument and it was your argument before the panel was this would be more straightforward if you would just direct mandamus to dismiss this case. Who cares whether we can order a different Circuit Court when we can do that . Two things about that. Here is why it matters. It matters because of judge niemeyers question. Getting mandamus of the 1292 b was a question of whether there is a substantial legal question. This court wouldnt have to bite off whether it was indisputable error. Courtsd the district very careful reasoned decision on this and it relied heavily on the idea that the government had only identified one of the three possible bases. It wouldnt bring the litigation the quick close and plaintiffs would still have the cause of action. There was a lot of discussion by the District Court not only about difference of opinion, but things that were particularized to this particular case, the litigation strategy of the party, so i feel we are not discussing the basis for the dismissal. Got to be incorrect. I know the court said these things but it has got to be incorrect because one of our theories is the subject is not subject to eat at all. If we are right, there is no further proceedings, there is nothing, the case is over, so if we are right that there is at least a substantial legal question about whether the president is subject to suit, it is a clear abuse of there is a legal standing, the District Court might be right i have a longer answer for why they are wrong about that, but they miss are understaffed misunderstood our theory. We should issue mandamus because they misunderstood . On the president not being subject to suit, that is the end of it. If there is substantial legal is,t, which i think there if that was a clear abuse of discretion, she is saying we cant you as an Appellate Court cant do anything about that. To use for example example, it is like if the tsa let a guy through with a loaded gun and the supervisor says well, i hope he doesnt bring down the plane. There is nothing about 1292b that puts that court this court in that position. Is yournk that position. No matter what the president does, there is nothing the court can do. Is, when you read from the Supreme Courts decision, the president is not theicitly prohibited from purview, but not expressly included. We find that silence is not enough to subject the president to do for rations of the apa. Our position the apa is in the constitution . A statute that authorizes it is not in the constitution. That is correct, your honor. Constitution does not allow people to suit of its own force. She is invoking your colleague on the other side . My colleague on the other side, i apologize. Sideunsel on the other pointed out correctly that her claim is not based on the constitution itself. It is based on an implied cause of action in equity. The courts equitable jurisdiction comes from congress. If you look at the Supreme Courts decision, it is a grant of equity jurisdiction from congress and is implied. That is why this quote from franklin is so important. Absent a clear statement from congress, you cant sue the president. Even if you set aside franklin, if you look at the Supreme Courts equitable cases, they say it has to be this traditional form. If it is an extension of traditional forms of release, congress has to do it and they cannot point to a single instance where the Supreme Court or Appellate Court with one exception from d. C. From 40 years ago has allowed a suit against the president in his official capacity. It is clearly a radical extension tell me about the Second Circuit. The Second Circuit . It didnt reach this question, your honor. The District Court only addressed because no one had mandamused anything. We won. And there was a reversal of your win. We won on standing. This court didnt reach the argument. The Second Circuit didnt read the just of the questions gist of the questions that have come here is that what we are supposed to do is look down and see where you are going, and if we cannot foresee that you would be getting relief, then we should grant mandamus. Isnt that fair . We want to see where the airplane is going before we get on it. It is clear from right now that the airplane is going to crash because j. Millett that is your position. The question wasnt presented. The question is, because the airplane fly certainly was. The Appellate Courts dont rule on what the District Court have enrolled on yet. It seems in the discussion we have had today, there are a bunch of questions that havent been ruled on yet. Every single one of the arguments ive made thus far are something we have argued and the courts have rejected. Is there a reason the government didnt seek mandamus in the Second Circuit to dismiss the case outright because whether or not there is standing, no one can soothe the president . Can sue the president . We won below on jurisdictional grounds. One last point, with your courts indulgence. I want to make two quick points about the merits. There have been a lot of concern and i understand why people would be concerned about the president not being able to act above the law without the laws. A brief explanation of why we think their claim is wrong on the merits of the emoluments clause. One of the key points i was going to make has been illustrated by the questions. About every profit, and they abandoned it today, they said apparently you have to look to history so lets. This will be my finally point. There was a proposed constitutional amendment to extend the foreign emoluments clause to all citizens. The constitutional amendment was passed by overwhelmingly in congress and nearly three quarters of the states. What that means is my colleague and the councils position today, almost the entire country almost passed a constitutional amendment which would say foreign diplomats cannot buy food, housing, or lodging. They would i suppose have to starve to death in the streets. That is what they are interpreting the emoluments clause to require. It is not tenable. Historicaltally a interpretation of the emoluments clause the clause has never been understood to understand profits from personal commercial transactions. Thank you. Thank you and may it please the court. This appeal raises, does the court have appellate over the effective denial of immunity and second, is the president correct that the plaintiffs complaints oninst him must be dismissed one of a number of grounds that were asserted below. The answer to both questions is yes. With respect to courts restriction, it is true the presence immunity was denied below because immunity from suit, this court and the Supreme Court have emphasized the need to resolve the immunity question at the outset of the case. Declined to court do so and open to discovery, the president was subjected to retrial procedures and could appeal the effective denial to this court as the court has recognized in jenkins and in euro. Where did the court does declined to do so . It failed to act on the motion pending for months, declined to address multiple requests. I had thought the court said he understood and was thinking about this and he would be rolling on it. What the court said at one point i think it was twice. It may have said it twice, but the motions to dismiss the government were decided by the end of the summer. It was august at the time. For conference as discovery moved forward. It was opened by an order of the court in december. We asked for a status conference. Two weeks went by without indication the court was going to address our concern. On the day you requested another ruling, you said in august at the earliest youenience and in december, requested it again and on the very day you requested it, the Court Ordered discovery. Six months of discovery. It wasnt against the president in his individual capacity, is that correct . Discovery reached a number of third parties through the organizations associated with business operations. The point is neither here nor there. Proceeding discovery against is subjecting him to priests pretrial procedure. There was a suggestion by the parties they would hold off and on discovery with respect to attorney general ashcroft and the court said no, the development of the factual record puts the president in this case in an untenable position. Either participate in the proceedings, protest the record, assert whatever rights the client may have and therefore be subjected to the proceedings. The denial of your immunity, thats consistent with this courts decisions. Alshavari . Out our 2012, a bank case. We said disputed questions with regard to claims of immunity are subject to discovery of the court wants to be informed. Court become sufficiently informed to rule. Thats a higher in Bank President in 2012. There was a collateral order qualified to immunity case. Not absolute immunity. Immunity is a stronger protection, but even in that case, the fact the district uprt, and it still comes doesnt apply in this case. You have the information you need to decide the absolute immunity at this point. The only point, and remember ite we did file an appeal, was the court that raise the questions as to whether the president could be dismissed from the case. I dont think there is basis from the District Court and discovery basis. E is a lot of the District Court told us twice it was coming and you have to this is your only basis for appeal. Basis it isly a firm basis of firm by the Supreme Court. We have the right to be here. Once here, there are other issues unless we invoke the collateral order doctrine, because we conclude somehow that the District Court has denied you immunity, do you have another basis for an appeal right now . The dialogue immunity is our basis. Its talk about denial of immunity. You rely on the two cases from this court. Lets talk about the two cases from this court, jenkins and nero. Neither one of them are this case come are they . In those cases, you had the benefit of an explicit order. Right. Isorder denying immunity different than saying i am going to reach the question of immunity, but not yet. Denial of immunity is no less a denial by nonaction from the District Court as it is an explicit action. Site me a case that says that. A number of cases indicate effective denials, but you dont have an effective denial. Are you a litigator or an appellate lawyer . I dabble in the arts of litigation. Marylandstrict of historically has had cases waiting to be ruled on for motions of dismissed to be dismissed for three years. That is ordinarily not a problem, but this case involves the separation of powers, counsel is in favor of careful. Are there any subpoenas against the president . That implicates the president s interest. In at Croft Ashcroft come you cant avoid this problem. There are cases from other circuits about these de facto denials of immunity. But are there any like this over a period of time is so short. Delay. S no unreasonable the District Court is saying i am going through on it and discovery is open, but not against the party seeking discovery immunity. I understand your point about the president s personal capacity lawyers attending the deposition, but there is no discovery order against the actual party seeking immunity. I cant find any case like that. When you had no unreasonable delay in this discovery against a Different Party implicates the interest of the party seeking immunity, the court is saying im going to rule, we can say there has been a de facto denial. On all 4 not even on all four, but i am troubled by the fact that it seems to me for us to say there has been a denial in the face of the District Court saying im getting to this is a difficult list and you dont have the thing that the other courts rely on to do that. Or unreasonable delay discovery against the party seeking immunity. Generally, as a matter of how litigations work, it is not just depositions but discovery requests. Of course, you could try to mandamus that. Discovery order, right . You wouldnt have to have the president do a deposition. You could come to court. , casesimmunity defense are very clear about there was a decision about immunity, you could appeal that. Respectfully, i dont think it is that heavy in the list of a list. On not going to rule immunity at this time, i need more information. It is still sufficient to constitute the effective denial of immunity. Rule on immunity eventually but the initiation of pretrial procedures we said no in the al shawario that question just raised. You have the en banc court here now and we can change that. We said no by a vote of 114. But this is absolute immunity so i think thats sufficient. Was there any case that says that . [laughter] fair enough. I may not have a case for that part i dont think everyone i think agrees absolute immunity is immunity theres another intercept. You can recognize there may be some limited discovery to make an immunity ruling. But the discovery in this case was justd up not it the opposite, not limited to the immunity ruling. Immunity was put on hold so to speak and the Court Ordered discovery to go ahead under a Month Program in which it which itself violates the immunity. It seems to me its more than an effective denial, its almost an explicit denial when you order discovery and not Discovery Limited to the immunity, the general discovery which you have to attend and participate and forgo your rights on. As the all the same case suit against the president in the official capacity. Its a single suit and the discovery may be limited to certain issues, but it was not limited to immunity. It seems to me when the court discovery,ogram of it is denying absolute immunity, which covers discovery. I think that has to be right otherwise the virtue of immunity recognition by this court and Supreme Court has to be doesnt that ignore the distinction between the two capacities here which the Supreme Court has also recognized . Assume ifld we discovery has only been ordered against the president in one capacity it comes against him in another capacity . Court,reme court, this weve always recognize that difference. The recognition of different capacities doesnt answer questions even if you use it as an entirely separate sentence can be subjected to pretrials in ashcroft they were proposing not to do any discovery in it ball again, entire parties in that case. In that case, even discovery against other parties still you have two different cases, one in the president s official cap capacity. This individual capacity lawsuit had been dismissed or never brought, the still wouldve had to responded to discovery in the official capacity. So im not exactly sure why it matters that the immunity issue hasnt been addressed if you are only concerned about discovery. Thats not necessarily correct. The president s naming in individual capacity requires a hiring of additional counsel and preparation of Party Litigation that have different rights than third parties. The thirdparty discovery in this case went through a number of corporate organizations. What we have here is we are a party weve asserted in a timely fashion our immunity and entitled to that immunity before we are subjected to pretrial proceedings. Discovery even against other parties, the same party in different capacity, its a pretrial procedures. I dont theres any room to raise a question we talked about a lot in the previous, what is it in this case and the court has jurisdiction. I know what you think about that. What you want the order to be . I think the court is obligated to address article three standing to make that clear. I think you have to at least at a minimum reach an understanding you want a rationale. But the results will be the same. The result may not be the same depending on the basis of dismissal. It may have additional effects, benefits and determination on immunity. No enforcing no one forced him to add him to the list. We wanted the determination of immunity to the point we are not placed in the untenable position which would be another effect. To the judges question, the order decision if we determined we had jurisdiction, you suggest we would must first go to article three, maybe not go to absolute immunity or is that necessarily have to come behind article three questions . I think this decision makes it clear that article three jurisdiction always has to satisfy itself, deaf but the actions of the District Court below. This declare you do have to satisfy yourself that article three jurisdiction first. The court then could proceed to the immunity case though we believe the merits questions are sufficiently intertwined with that. The court has several options available. Juror it sets out is jurisdictional questions first. Obviously theres a lot of talk about the effect of the dismissals with the court being satisfied. I think this courts decision both before and since including the decision in Dominion Energy support our view and reading of the case that once the District Court does the by timely notice the District Court was divested of any ability including two object dismissal. It would create all sorts of opportunity for mischief and would be inconsistent with federal rules of appellate procedure to permit them, a party who is unhappy with the way in which the appeal is proceeding to unilaterally go back to District Court, file dismissal and dispose of the appeal at that time. A number of other cases have been doing the suggestion that notwithstanding that rule 41 a1 dismissal. I would like you to address the concern i have, it does seem it is not posture because no one has it is an odd posture because no one is pushing this claim at this point. Isnt it as advisoryish . I dont its correct they advanced ash arent advancing the claim. They are not satisfied. If they had proposed if they propose to dismiss without prejudice we would have a harder argument but we would at least have certainty on the behalf of the president he will not be subject, we may have more we wont be subject to suit by other states. Under the theories they have advanced with respect respect of standing. Its further than that in the argument for the panel if i recall correctly, the Opposing Side indicated they did want it without prejudice and did not want to give up the right to suit again and they were reserving that right. Under therocedures federal rules to effectuate dismissal on appeal. Cannot allow for the unilateral by the appellee in any instance and we have not been approached to that. Th respect i think its clear and you are right. That he will be subject to further action and dismissing him from the case for the time being allowing all the discovery to develop is just as troublesome as the discovery process this recognized in the iqbal case. I think the standing question should be decided on the same grounds. I do think there is no standing with respect to claims arising against the federal government, i think the standing is overly speculative with imminent regressive old regress a bowl regressable injury. It doesnt arise to the level. Immunity is a sufficient basis on which to dismiss us. , it risesmade clear only from his official status as president and can only can only violated as president and immunity will be prevalent. Thank you, counsel. May it please the court. On behalf of the district of columbia and maryland. We think that this Court Lacks Jurisdiction over the president s appeal for two independent reasons and thats where i intend to focus my attention but i would be happy to answer any questions. The District Court not effectively deny the president s immunity claims. Havembers of this court recognized, the District Court was very clear it intended to rule on the motion and i would like to read from it. Before jurisdiction can be invoked under the classical collateral order doctrine, they must issue a fully consummated decision that constitutes a complete formal and final resolution of the issue. In other words, the courts ruling must be the final ruling on the subject addressed. Lacksat alone, this court jurisdiction. The district of columbia and maryland filed self executing rule 41 a1 a1 notice of voluntary dismissal and is this court and other courts have recognized, the filing of such a notice operates in the matter of unconditional rights running to the plaintiff and may not be extinguished or circumscribed by an adversary or the court. So if you had not filed your now,41 notice until right filed during the course of oral argument, would that moved our case . I believe it would. The balance that is struck in the federal rules and that is what the Court Decision is even whenss there has been an investment of resources whether defendant and by the court, rule 41 strikes a balance, its a creel a clear rule. If a motion for Summary Judgment or an answer has not been filed than a rule 41 notice is an absolute so under your view for instance, you could wait for after oral argument, file rule 41, terminate the case, you could even wait until after the opinions issued but before the mandate issues and still file . Ofi think that is the logic our position, its not what happened here, but also there is a full line of but that is where your view of rule 41 takes us takes you. What i would say to that is there is a whole line of cases that talk about what the appropriate thing to do to essentially address the sort of concern about gamesmanship is who hasthe party voluntarily move the case cannot get the benefit of a lower Court Decision, so the equitable remedy exists to address any sort of benefit they would get from that. Here there is that is no assurance because the dismissal would take place probably under the gamesmanship theory on the stage of the case where the party dismissing was fairly certain it was going to dismissinge party knows its not going to get the benefit of the District Court decision in any event because the court of appeals appears either from briefs or argument to be unsympathetic to the position, so you just snatch the case of the 11th hour, the benefit of the District Court decision is immaterial to you because you are not going to get it, you lose the benefit. Youre gonna lose the benefit at the reversal at a parent an appellate level. How is that a safeguard against the sort of gamesmanship with respect to rule 41 that you seem to be advancing . Is int this court said that case at the District Court level, there were concerns that the party had come in, there is a promotion for there had been a motion and three days of hearing on the per luminary injunction motion and the court was concerned there was a the party seeking a per luminary preliminary injunction had misrepresented things to the court and what the court in that case said is that it is especially tempting to force the plaintiff to take its medicine in a case like this where the plaintiffs behavior has been so disassembling, if not downright fraudulent, but our task is to apply the text, not improve upon it. Cases the rule 41 contemplate the possibility that a litigant may use a rule 41 notice of voluntary dismissal in a way that leaves the court and the other side feeling unsatisfied, but they have nevertheless described it as an absolute unconditional selfexecuting right. Were did any of those deal with a dismissal trial from the cases on appeal . Onnone of those cases are all fours on the procedural prostrate. Posture. Isnt that the problem here . With adjuster tort has retained jurisdiction to allow for that kind of voluntary dismissal, but the case is now before us, so why should we defer to the District Court dismissal when the case is properly before the Appellate Court . For two reasons. The first is the its not properly before this court. But it is, once a notice of appeal is filed, discharges of the court of appeals. The only thing that can happen in the District Court is an active aid of the appeal, and eight of the appeal. Undermining the appeal is a different thing. Court once district the notice of appeal is filed can act. Otherwise jurisdiction is in the court of appeals. That the law as i understand it. Year, ane of these last case called dominion, they had an issue but they are the court District Court ordered a stay theykirted the issue tried to file the rule 41 after the stay was imposed. So we didnt have to deal with the thing you are presenting. It seems to me you are stretching things to get in something you dont need to. I dont know why youre getting into this. The only question here is whether this collateral order appeal can go forward. Where there is no better ruling. About issue there if we have a controlling question of law that doesnt require Factual Development we have an exception to the prohibition against collateral order. Youre not suggesting that needs to be any Factual Development here, its just a pure question of law, isnt it . I believe the immunity question is a question of law in this case. So if im right in the way that opinion reads, we dont need to go through the Factual Development issue that that opinion talked about. I think the opinion addresses the fact of what constitutes a collateral order. Here there is no order. The defendant certainly could have sought mandamus. I dont mean to cut you off. I understand your position that the nonorder isnt effective enough. But we have to address that first about whether the discovery here in effect creates that. I understand that. Wasnt presented in al samara he. I think it is a separate the question of whether there was an order below is a separate question, but i think this goes back to judge kings question because it is true that the theral rule under gregs is filing of a notice of appeal divests the district of jurisdiction to act, i dont want to belabor the point about rule 41, but there are two first is caveats, the griggs itself makes it a where the appeal has to be effective and if the notice of appeal is defective, then it is treated as a nullity, it does not exist. If it is filed from a frivolous order that is not appealable. Then it is not effective. Casee defendant a criminal files a notice of appeal on friday to keep from getting out of a trial on monday. We have those things come up. A frivolous notice of appeal. But as a general proposition, the notice of appeal puts the jurisdiction in a court of appeals. I would disagree respectfully that because it is equally well established that there are exceptions to that. It is not just that the jurisdiction that the District Court can act in eight of the appeal. Under the federal rules of appellate procedure it can resolve emotion to offer or amend the address of the appeal, it can address in the first instance the motion for stay pending appeal. It can correct clerical errors, address matters you have no case in answer to judge diazs question before where the notice of appeal a drug to vest the court of appeals where its been divested by rule 41. I respectfully disagree with that. So what is it . These are cases cited in our motion to dismiss the appeal. Young versus draper from this court, a published opinion from 2017. The plaintiff filed a rule 41 notice while in interlaken tori appeal was pending in the court to dismiss the case as moot. I have a case from the fifth circuit in 1993, mcfarland versus collins, all of these are cited in our brief, where a habeas petitioner dismissed his own habeas petition in the District Court during the tenancy of the appeal. There is also a very recent case from the ninth circuit, this week actually, where the , there were four defendants and three of the defendants reached a settlement so they filed a stipulation of dismissal, the other defendant refused to stipulate the dismissal so the plaintiff filed a rule 41 notice and relying on , pedro rena is the case from ninth circuit but also citing all the other ones in our brief, they said the District Court does not have to exercise jurisdiction in order for a rule 41a1a1 notice to be effective on the time it is filed. Question of whether this is a jurisdictional question based on rule 41 or whether its a factual question, this court is no stranger to dismissing cases on the grounds that they are moot. We did it in a criminal case where the defendants have gone through trial and appealed against it, headed in the direction and then the president took an action on privacy and nobody asked for mootness. , they know what happened decided that was an executive thing, this is moot and just got rid of it. Here to saytion was it is moot because it is over. Here, for all the argument about whether this is moot, they are not a lot of cases this applies to. It doesnt even come up unless the defendant has or Summary Judgment is come up. Its a very narrow class of cases in which you have an issue of this type that arises. I agree with you. It is even narrower because it has to be a case where the defendant will not take yes for an answer and walk away do you agree with position that the case against the president in his individual capacity is moot . Is that your position . Our position is that the rule 41 i ask you whether you take the position whether the appeal is moot . We believe it is moot. It is moot . We believe it is moot. Yet you refuse to dismiss it without prejudice. Do you still reserve the right to refile the suit . Yes. We are not how can it be moved then . Our position is it moot by virtue of the rule 41 a1 a1. Is aat is not moot, that procedural route of argument. That goes whether its no longer a case of controversy. If youre reserving the right to file again, we have this whole doctorate in the area of injunctions and otherwise that is hardly moot when you are when you want to dismiss now but maybe file later. The position we have taken on mootness, the reason we say it is moot because of the rule 41 notice is because of the cases that say a rule 41 a1 notice puts the parties in the position as if the case had never been filed. So that is our position with respect to mootness. Lets assume we do have jurisdiction on this based on discovery and test in the case in the case. Assume this doesnt deprive our jurisdiction. That weave any argument dont have to address standing first we have jurisdiction in response to what your colleague argued earlier . We disagree honor, strongly with the proposition that that requires the court to address standing first. The first principle behind that is that the first thing this court does is look at what is the basis for Appellate Jurisdiction. The only basis is the collateral order doctrine. In the Supreme Court i have two points first. I think youre taking away the assumption i asked you to make, maybe you are not. Im not. Even assuming the notice of still, theeffective basis for jurisdiction is the collateral order, thats the only basis. What this court said the Supreme Court has addressed this in several ways. Both of which postdate steel co. , the court said the courts have wide leeway in choosing among grounds for disposing of the case. So there is no reason. And this court immunity, which is usually raised under rule 12 p6 and as an affirmative defense which could be weighed, does that get precedence over a jurisdictional issue, which goes to the power of the court to act. In steel co. I thought suggested we couldnt assume our power to act if there was a question of that power if we had resolved that first. It seems to me this is not threshold jurisdictional issues where we could pick even personal jurisdiction which could be waived. Affirmativea 12b6 defense and you are suggesting we should decide that ahead of the power of the court. I wonder whether steel co. Really doesnt tell us we have to decide around power before we go ahead and exercise that power. What the Supreme Court made okar in a case that it was for the court to decide forum nonconvenience before addressing jurisdictional issues. What kind of jurisdictional issues . Personal jurisdiction . Theres a lot of difference. Article three jurisdictional issues. I understand. But article three under personal jurisdiction is quite a different concept from subject matter jurisdiction. Subject matter jurisdiction, we dont have the power to act and that was with Justice Scalia was trying to point out that we should Pay Attention to. With other jurisdictional questions like personal jurisdiction is also jurisdictional, but it can be doesntit isnt up deprive the court of the ability to act. I think thats the important distinction that they make. So what the court incentive underlyinghe steel co. Is that jurisdiction is vital only if the court proposes to issue a judgment on the merits. What cases after steel co. And have if if you there are threshold nonmerit issues that are properly presented and are argument here is that that is the only thing that is properly presented so there is a merits appeal and a lack of diversity appeal in a civil suit. If there is a lack of diversity, and we believe there is a lack of diversity, we can vote to determine merits . Hypothetical. So not based on the collateral order doctrine. I ask you a hypothetical, there is an appeal and we have the merits and we have lack of diversity, we can ignore the diversity and assume it is there and act on the merits . We dont have the power to do that. What the court said is thats when the jurisdiction thats being discussed in steel co. Matters, when the court purports to issue a ruling on the merits. So the question is not whether or not the court can skip to the merits and then address other issues, the question is when the court has before it a number of threshold nonmerit questions, what is the proper order of operations. Should we decide to statute of limitations when we dont have diversity . When it is a threshold nonmerit i wanted to address my hypothetical. My hypothetical should be we address a statute of limitations issue when we dont have diversity . I think there i would also say that is a threshold nonmerit question and then the court has so we could decide special limitations. If it is a way to deny the party an audience to the case on the merits, than the court can decide in which order to dispose of the issue. The power towe get rule on limitations . We dont have the power to do that. Congress gives us a limited power under article three and one of them is diversity and if you dont have diversity, you dont have the power to act or to rule that limitations is or is not. You read aformula quote from a case and say we can decide anything we want if its convenient or its not on the merits. We have to understand the notion that if the motion goes to our power to act under article three, we have to resolve that or move forward. More levelsviously of disposal, jurisdictions and then we have a bit of leeway to make that decision and i believe thats what the Supreme Court was saying. Respectfully your honor i believe those both speak to the question and put an important limitation on the steel co. Ruling. I would also point this court to multiple cases that this court has decided after steel in which it has expressly declined to address standing or other article three subject matter jurisdiction issues on collateral you are basically arguing at bottom that we should decide the immunity issue and not the standing issue. Is that your position . That is i didnt understand that as your position. I thought you thought there was no final order here and there was no basis for invocation of the collateral order. Yes. If we have no final order and no collateral order, we have no appealable order. That all this discussion is if we do, if there somehow is jurisdiction here, then we look at these very interesting issues and discuss them. If we should include conclude there is not an appealable order here thats correct. Thats where i thought you were at the beginning. The judge had you talking about deciding standing or immunity and all this stuff. If we cant get there unless there is an appealable order. I completely agree. Thats what i said earlier, you are talking about all this other stuff about aiding jurisdiction andppeal with the rule 41 all these other issues. The question here is whether you have a notice that theres a notice of appeal that was effective. And whether this collateral order jurisdiction. If the answer is no it would end, stop jurisdiction, dismissal is what they call it. I agree, judge king. I took the premise of the judges question to be that he disagreed with me about the motion to dismiss the appeal because he wrote a Panel Opinion saying that. [laughter] go to theld only question if we do have jurisdiction and then they are all fair game and very interesting. But if we dont have any jurisdiction here, that is all she wrote. That is absolutely right and thats where i started. The first thing the court has to decide is whether it has jurisdiction. Lets go back to that basic. I think these were either hypotheticals we get beyond that. But the main issue, one of the main issues is whether there was an effective denial and you said jenkins holds we dont have to have in order for to effectively deny this and my question to you is this, when the District Court entered was requested several times to address immunity and then the District Court, which of course covers immunity from proceedings, participating in proceedings including discovery, pretrial proceedings and discovery, when the District Court enters an order scheduling discovery in which the president is going to have to participate if he is going to stay in the preceding, is that not effectively denying the right to be spared the onus of participating in pretrial proceedings including discovery . There are a few points in there. I wanted to elaborate all the details but the real question focuses on the discovery order, the program for discovery, effectively denies the president immunity because the order said you have to go in with discovery despite the president processor and of immunity which covers discovery. I dont agree the discovery order in this case constituted an effective denial and i would be happy to elaborate on that. I would also like to you just agreed earlier you argued there was no order to be appealed from and jenkins recognizes you dont have to have an explicit order to deny that you can effectively deny it and my question to you is is that december 3 order, ordering Discovery Program, sixmonth Discovery Program without addressing the immunity, isnt that an effective denial of immunity . The reason why want to disturb with jenkins is that i dont agree that jenkins stands for the proposition that you can have no order. Theenkins, the court denied motion to dismiss in which summary qualified immunity had been raised. The District Court ruled on that motion, denied the motion and said i will address the immunity claims as summer at Summary Judgment. The court thats the same thing that happen here per the District Court said three times i will address it later. It was raised in april and in april the court said you are not going to hear it, we are not even going to allow you to be present on the hearing on june 11 and then on june 11 the court says we will address immunity later in the july 25 they say i will do a separate opinion and then in august 15, the president said would you please rule on the immunity at your earliest convenience. The court did not do anything and on december 3 the president said will you will you rule on my immunity and on that date, instead of recognizing immunity and promise to reach it, the district judge issued an order for discovery which effectively denies immunity because discovery is protected by immunity. Onlye discovery order was discovery was only opened against the president and his official capacity he had to attend the depositions regardless. I dont think he has to attend the depositions. He has preserved the objection. Thats what you would counsel in a lawsuit . Had an immunity claim that we believe needed to be addressed, there are number of things i would counsel my client. Sit back in the living room and watch Football Games all litigation goes on. Preserve the objection and decide whether or not to attend the deposition, but you could also seek mandamus, there is no question the defendant could have done that here and if he thatthe result would be this court if it believes the mandamus standard so your position is you just want to keep the litigation grinding on and on and on, let the District Court have it for 18 months or a couple of years, court of appeals doesnt have jurisdiction under the ,ollateral order doctrine discovery of takes place and theres no ruling on the immunity until late thate gist of it all is the president is tied up in with theth litigation purpose of it, the purpose is to have a litigation go on and on and avoid any kind of resolution and that seems to me, i wonder what the implication of having the litigation just grind on and on without resolution, what are the implications of that for separation of powers . And so the potential, not just of this suit, but of many other suits to simply tie down the presidency and the executive branch of government to a greater extent that it has been impeded before. That is the end of it. Just keep litigating, isnt it . I see my time has expired. But you can answer the question, the first part. I couldnt guess what your answer would be. There are a number of questions based into that question. Certainly our intent is not to tie up the president and litigation. We have tried to dismiss the individual capacity defendant from this lawsuit and we are also not taking a position that if discovery has gone forward to notice the deposition of the president that he would have no effective relief either from an effective denial or through mandamus. But here, where the District Court evidenced an intent to rule was working through the issues of this case and there is no order from which to appeal we believe that this court should at a minimum we believe that this court does not have jurisdiction and if we believe that even if this court does that the appropriate thing to do is to send it back. The president is denied a right to appeal under the collateral order doctrine. Our what a long range obligations of that that the president is going to be tied up in internal litigation without a court of appeals they are to be able to review it. Haveit does is once again the executive branch of government by virtue of your interpretation of the collateral order doctrine have the executive branch of government tied up for an indefinite period of time without the ability to seek recourse in the court of appeals for something for litigation that may be truly going off the rails. Thats really whats at issue here. We can debate the pros and cons of this, this wrinkle in that wrinkle of the collateral order doctrine. But the longrange effect of this is whether we are saying setting this whole business of debilitating with litigation that offends the most base separation of power principles if we can just keep the executive dangling. Iswe dont believe that that this case and we certainly dont believe that the courts needs to go that far in this case and interpreting or deciding whether there was an effective denial and even if there was an effective denial, whether this court will then reach out and decide an immunity question in the case we have said we dont intend to litigate. Intendou said we dont to litigate it, we dont want to litigate it, we will dismiss it with prejudice, i will venture your colleague on the other side of the aisle will be readily prepared to dismiss the appeal, but you have said and you have repeated today that youre reserving the right to file it again. Is that what this is all about . Is there gamesmanship going on here . I dont believe there is gamesmanship. Say is it have to ought to be dismissed for lack of jurisdiction. Any of these other issues are for the District Court. To the judge king point of jurisdiction and the comments of gamesmanship, thats what we face all the time with cases havecome up, you may another motive, i dont know what your motive is, i wont tell that to you. E have a legal issue we are not the news channels or arguing about these cases, we are a court of law. We need to decide the legal issue in this case and forget about the question of whats gonna happen, is the world going to turn upside down if we do this or is the president going to have to work too hard, there is a clear legal issue before us and if it does go there, the lit there are limiters that can address those concerns that this is not the time to do it. Agree and for the reasons ive explained, we dont believe that this court has Appellate Jurisdiction and that it should be dismissed. Thank you. Thank you. This court unquestionably has Appellate Jurisdiction of the case. It is not moot, the arguments are being pressed. The president has asked for an very being of this case, plaintiffs are unwilling to give him anything close to the release he is seeking. On the effective denial point i want to make things clear, the notice of appeal included a notice of appeal of the order opening discovery. We do have an order be filed, its not just simply a notice of appeal on the docket untied to any actions by the District Court. I also i think the court has to grapple with the question that it requires something as explicit as whats happening in jenkins, again thats not much more explicit than whats here. Im going to rule later is not much different than i am going to issue by decision at a later point in time. Takeover discovering the official capacity case as well. You want us to take over discovery as well. Think that subjecting the president we are talking about the law in terms of discovery. Manage,rict courts dont they . Forcing the president subject to pretrial procedures including discovery is an effective denial of his right of immunity. In an official capacity also extended it to discovery, thats what youre trying to say its more than just the individual, we included also the question of stopping discovery even in the end of it. Did you say that . I said the opening of discovery against any party in any way shape or form constitutes a denial but you said you also included the aspect of discovery in the official capacity, youre asking us for a ruling on that as well. Did you say that . Just now when i took the podium or at some point . On your rebuttal. Maybe i misunderstood. Sure so let me rephrase my point. Once discovery was opened against any party in any capacity, the president as a party in this case was being subjected to pretrial procedures that constitute an effective denial of immunity and we have a right to appeal even if the court prior statement about how it was going to take on immunity. Looking at all these various to thees and to listen discussion of mandamus, immunity, the collateral order doctrine. Case is think this really no different from an , theary slip and fall case character of the litigation is demonstrably different. We face this all the time. No we do not face it all the time. This is, i think everyone would this is a case with dimensions that come before us that simply do not come before us at a normal Tuesday Morning and you have to take into consideration the separation of powers arguments which are fundamental, go to the place of the judiciary and the presidency and you cant just look at it ofm the lens of an exercise post force under a slipping fall withor some other case judicial business. This case is different. I certainly agree that this case presents a lot of unprecedented and highly important issues, incorporate sentra separation of power concerns and those play in favor of a lot of the arguments that have been made so far. But it does this is not a case for the parties have agreed, i want to address a couple of points during her argument. A number of these recited where the appellate filed the rule 41 a1 dismissal and in that case there is no relief that can be granted the court of appeals that is consistent with allowing appellates to dismiss the cases. A couple cases they cite, the appellate did not object to the dismissal under rule 41 a so there is no definite. Those were filed in the District Court . They had jurisdiction to handle if the appellate does it or the parties agree to do it . Because the appellant can always abandon their appeal with rule 42 rule 41s active dismissals, not 42, its not a matter before this court. The transfer jurisdiction a notice of appeal, you cant go back there. And your base can sing you can. There is some jurisdiction to go back and handle it if the Appellate Court agrees . I think in the fifth circuit case what the courts are doing is reading the motion filed they are treating the motion filed the District Court. They did not do it in the other case here when the parties stipulated to the 41 in the District Court. Again,s this court and if they can go back and stipulate in District Court, there has to be some jurisdiction back there. In some of those cases of the party may have essentially agreed that the appeal was moot so in that case at that point may the case should be remanded. There is no agreement that the case is moot. With respect to the argument regarding the the issues. They canes make clear choose among certain threshold issues especially ones that go to our courts. For example, arguments but whether the court has the power to recognize the cause of action in some cases may constitute issues come of their other threshold statutory issues. But what steel co. And those cases still say is that outside of jurisdiction or other similar threshold issues why would we think about the totten rule as being very similar to absolute immunity in the totten rule in the extent you understand where it comes from it seems to have a similar idea to absolute immunity. And they said we can reach that as a threshold issue, why wouldnt we think about absolute immunity in a similar light . I think there was a disagreement about what that rule was. Im not sure either. The point being it seems to have a Similar Foundation, why wouldnt that totten rule, which the court said we could reach that as a threshold matter, why wouldnt that fall in the same category of absolute immunity which seems to have a Similar Foundation . The concern the judge got at is immunity is based on merits and a ruling is considered a merit ruling, we cite a couple of cases in our opposition brief. The totten rule would be the same way. I think that was the subject of some dispute in those. Its a hard issue and im not trying the standing case is easy. The absolute unity case, we understand there is somewhat of a precedent nonprecedent. This case we think is a lot closer the court clearly has Appellate Jurisdiction. I want to make up one other point. Even if this were to go back, there is another lurking issue that will bring these back to the forefront which is whether there the rule 41 a1 a1 dismissal was effective because it did not dismiss the action as a whole, it only dismissed some claims against the president in the in visual capacity. That would bring an issue. The rule talks about action and later in the rule it talks about a claim in an action and so your point i think is well taken whether the rule is involved when they are willing to dismiss the action. Correct. In this case i think their other address claimsly or parties. It doesnt make any sense to read rule 41 the one thing you know from a case like Mitchell V Forsyth is the extension of discovery and the extension of litigating proceedings is absolutely at odds with the whole purposes of immunity. The whole purposes of immunity get it resolved at a relatively early stage, otherwise the value of the immunity is entirely lost and to the degree the District Court subject go on the and on and on, the value of the immunity drops down and down and down. This for theook at purposes of immunity and the particular cogency of immunity when you are bringing an action against the president of the United States. The purposes of immunity dont just dissolve when the president of the United States is defendant, they are magnified. Thats what we are talking about here. I think that is right. Do you disagree with that . No. Theout not disagreeing point of importance with the president in which a number of actual arguments on the various legal defenses go to. This is not the only context in which the court theres a real problem with theres a issue where you need an exposed order addressing decline claim which could be reasonably made. That would hide all the benefits absolute immunity and would run afoul of numerous precedents requiring courts to address immunity claims, especially absolute immunity claims. Thank you, very much. Thank you counsel. Clerk to adjourn the court. The Honorable Court stands adjourned. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2019] everyhington journal live day with news and policy issues that impact you. Coming up this morning, Brian Bennett of Time Magazine and mike of the Washington Post will join us, preview the anticipated full house floor vote on impeachment and the upcoming government funding deadline. Also joining us, alan dershowitz, attorney and harvard law professor talk about his opposition to efforts to impeach President Trump. Be sure to watch washington journal live at 7 00 eastern this morning. Join the discussion. The house will be in order. Beenr 40 years, cspan has providing america unfiltered coverage of congress, the white ande, the Supreme Court publicpolicy events from washington, d. C. And around the country so you can make up your own mind, created by cable in 1979, cspan is brought to you by your local cable or satellite provider. Cspan, your unfiltered view of government. Our cspan campaign 2020 bus team is traveling the country asking voters what issue should president ial candidates address . One of the issues i really wish candidates in 2020 would talk about more often is the issue of Mental Health. It has been a controversial topic for the last several years. 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