Transcripts For CSPAN2 Fourth Circuit Emoluments Oral Arguments 20240713

United states in his official capacity. The District Court committed multiple fundamental errors for refusing to dismiss the suit and plaintiffs are speedy spake up just a little bit and bring the microphone a little closer if you can. The plaintiffs are fundamentally mistaken in asserting that this court is powerless to correct any of those errors at this time. We have identified two different pass through which this court can grant relief but theres one overarching point that is of central importance. That is this. The Supreme Court in cheney make clear separation of powers are taken, our utmost important when considering mandamus petitions involving the president of the United States. For example, the court quoted chief Justice Marshall to say that in no case where the court be required to treat come proceed against the president as what against a private individual. Moreover, the court said the high respect that is to the office of the president must be considered throughout the entire proceeding. What does that imply in this case . Their position is that if the District Court erred in refusing dismiss the court, even if it clearly and indisputably aired to dismiss the suit, if every judge on this court agreed, deposition is this court is still powerless to do anything about it, that the president must go through District Court litigation subjected to discovery into his personal finances and official active administration and only at the end of all that can take an appeal from a final judgment which will then probably be dismissed. I thought it was your burden to show that you were clearly and indisputably entitled to mandamus or cut that that was what of the three requirements of mandamus relief. Is that not so . That is correct. So it is not that they are saying you havent met that. Its you having to demonstrate to us that you have met that, right . Your part right and part not right. It is true we have the burden to show clear speed is clear and indisputable right. Deposition is even if the court were wrong, if every judge in the world were to agree you should dismiss the suit the deposition if we still cant get appellate relief. That is their position. After skipping a step. You have to meet your burden first. Thats right and am happy to do that. I just want to make clear i think we have to talk about your burden because you would agree that mandamus is extraordinary relief. It is. You are entitled to this extraordinary absolute. What he wanted to set the outset was we had to meet sensually mandamus. Let me interject. Why dont you distinguish as you said this case what the d. C. Circuit did in a similar setting, where they sent it back, as i understand it. Ill answer both questions at the same time. I dont think there is an material distinction between what the d. C. Circuit did and what this court, youre asking this court to do in the following sense. The d. C. Circuit said the District Court clearly abused its discretion in refusing to grant 1292b certification. Without deciding whether it can grant mandamus on that basis that then we met at the District Court why dont you reconsider . With all respect i just dont think that is a material distinction between ordering this court to say youre clearly erred, you should grant certification and telling a lower court you clearly erred, why did you reconsider it. You seem to think theres a big difference in granting mandamus relief and doing that and thats why the question is well taken. Im sorry to persist in this, maybe you can explain why you meet the requirements for getting mandamus relief. The first legacy one less thing about that and i will turn back. And that are related. The reason why dont think theres a difference is because when you tell a District Court there clearly abused their discretion and why did you reconsider, only two things will happen. A recent District Court will follow the Court Construction and basically grant the certification. A totally intransigent District Court with thumb its nose at the court of appeals. Its more than a clear thats the first prong. Clear and indisputable air if you look at cheney its different that an abuse of discretion. And abuse of discretion but not a clear abuse of discretion. If you look at cheney it is expressed. I can read you the quote. But youre still skipping the first step. The first step is that you to demonstrate is a clear and indisputable right. So what is that clear and indisputable right . I have two different theories. And if you can answer along with that, what was the District 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 three questions of gotten is we think it is clear and indisputable that you cannot sue the president of the United States in his official capacity without at a minimum having an express statement authorizing such a suit by congress. We think that is clear and indisputable but the Supreme Court has thrice held exactly that. I think thats your gloss and what the court held that we know from current litigation involving similar issues that several courts have allowed suits against the president to proceed. So how can it be clear and indisputable . It lower courts have found Supreme Court precedent that is not dispute. What the Supreme Court said, the question frank was what the president the subject is administered procedures act. He administered procedures act said it covers agencies and five agencies in the authority of the government of the United States. What the Supreme Courts that is that language did not express include the present nor did it expressly exclude the president. It recent in light of the separation of powers and the unique constitutional role of the president , textual silence was not enough and you needed an explicit statement from congress before the president could be subject to could i go back to the standard . You said there was a a clear ll error. Is it your view mandamus should issue if the reviewing court thinks theres been a clear air . Thats the standard we use direct review. I dont think anyone thinks we should grant mandamus on that ground. Theres a threepronged test showing clear and indisputable legal error or clear abuse of discretion, either one i think you take that of context from cheney. I know the court are talking about but its in the paragraph that talks about how this is an incredibly drastic remedy, how it is traditionally been used to ensure a District Court has not usurped or there some gross abuse of authority, usurped a power doesnt have, gone outside its jurisdiction. I think saying clear air is not the equivalent to what we are talking about. Im happy to accept anything from relations because those equally apply when you have suit that is against the president of the United States that is categorically foreclosed by Supreme Court precedent. This court has held in recent, if a lawsuit was filed in federal District Court that shouldve been before a federal agency, that is the sort of clear usurpation of jurisdiction to usual phrase that warrants mandamus review. As i understand your position, you have a clear and indisputable right in this case because the judiciary is seeking to usurped over the presidency of the United States on authority that is never been asserted or claimed before. That is absolutely right. The point i was trying to make is if it is a clear usurpation of jurisdiction to entrench on the primary jurisdiction of a federal agency, and agency that is exercising the president s executive power, then it is a clear to entrench upon the present autonomy and so. The president is the chief executive. You refer to franklin v. Massachusetts and cited it i think accurately but that left open the possibility of a suit against the president for a ministerial act and theres some other cases, clinton v. New york and the d. C. Circuit case against president nixon. If you could address whether you think the release being solved is ministerial or discretionary, i would appreciate your position on that. First, i dont think this is ministerial. I think in fact, making the precise error that the Supreme Court in mississippi versus johnson rejected. In mississippi, the plaintiff tried to say it was minister because the president did not act unconstitutional. The challenge was the certain reconstruction acts were unconstitutional and they said of course you have to comply with the constitution so its a minister duty. The Supreme Court said no, that is not what ministerial meets. The question is whether theres any discretion and if theres a reasonable dispute as to whether the act is unconstitutional and that is not mr. Ministerial, its executive. That question is question mark whether it would be constitutional to allow a suit against the president. Theres a aniseed step that is important. Before you have to decide that difficult constitutional question, at a minimum, but you have to expressly authorized such a suit. Congress should have to say that the president can be sued for ministerial acts. Thats the point of the clear statement environment that is in franklin. Its in nixon versus and is often basic canon. Why would this court construe an applied cause of action in ineqy for the first time in his nations history to present constitutional questions . This court avoids constitutional questions and that follow also just basic principles, they rely on traditional commonlaw equity power to join federal officials. There are two things about that. They cant assert such a history with respect to the the presid. Its always been lower federal officials. And second we know from cases that the scope of the traditional remedies has to be borne by history. The whole point of the Supreme Courts 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, whether dispute was over whether prejudgment particle post judgment partners could file suit, surely of the puzzle with you can extend a cause of action for lower federal officials to the president of the United States. We are treating this as if its some ordinary runofthemill case, and it is not that. The judiciary is asserting injunctive power over the present of the United States, and not only is it asserting that power, but its asserting it 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 aging in the enforcement of a 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. The government is not acting directly against in the individual and were not confronted here with enforcement of a judicial subpoena in a criminal action. What is being asked here is just wholly unprecedented, which is we are to create a cause action on our own under this emoluments clause. We have no history to guide us. We have no president to guide us, no right has been conferred or created by this clause, and 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 her arguments. All i can say in addition theres no question there. Let me ask you could he answer my question . I didnt hear a question, im sorry. If you were a question, please answer. I think what i would say is it all of that is not enough to ward mandamus relief i just hard pressed understand how this court could say very trenching on executive agencies jurisdiction is enough to ward mandamus review. All the litany that the judge explained blows out of the water the case so an edge to the question can understand what you say, you say youre agreeing. What is the question . This is the exact thing that warrants mandamus relief. The story struggle authority to a cause of action, to do all this and not even allow an interlocutors appeal, its not only that so the question goes beyond just whether or not this is something the president , the separation of powers but goes to the question he above the law . The allegations here are essentially discovery that seeks third parties come primary businesses. Its not a prerogative of executive branch that is pink sought to get an order to tie that in you have to tie it into ultimately using whatever the president does put him above the law and out of the reach of the able to deal with issues that may be squarely there. Me ask a fundamental question is you started out to the effect that youre saying they she cant even be here, which before you even Start Talking mandamus you have to look to determine what is mandamus available in instance where the District Court has given a denial of certification. Its clear, i dont know of the cases have that in this fashion if you want to dick about something this have happened for in the tent circus have dealt with the know we has said it accordingly taken over by the Appellate Court. Appellate court cannot usurp power to do it. Congress spoke and it really comes down to a congressional word, share. But let me finish. In an instance of a District Court saying denial of certification in that particular instance, theres really no precedent for whats happening here today. Thats not true. Let me say three things. Theres one circuit. You would have to agree though that with the weight of authority is against you on that point. The word is precedent. Let me finish. My what is president. Theres a precedent for this. There may be another circuit but the weight of authority goes entirely the other way. Let me say a couple things about the weight of authority. First as you recognize theres one circuit and squarely done exactly what we said which is the 11th circuit in the fernandez case where the 11th circuit directed a District Court to certify. There only distinction is the District Court had not yet ruled on the certification motion. The 11th circuit didnt let the District Court exercised discretion. They thought so obvious that it directed it without giving the District Court the chance to talk would screw up which is what the District Court here did. It is both the d. C. Circuit in the parallel suit and the fifth circuit in the mclellan case have found what is the essential appointment. Face of the District Court clearly abused its discretion and they remained for the District Court to reconsider. On honest, ive hard to understd how any honest regional District Court judge in the face of that order would do anything other than what the judge in d. C. Did which is probably turn around and certify. The only difference between that and this is a completely intransigent judge who could care less that a panel of this court said he clearly abused discretion. Promptly turner and certify back to the District Court . That wasnt done here . I think the panel was absolutely right that it is pointless to remanded to the discipline to get the District Court the physical can thumb its nose at this court. Do you have any case where court of appeals has used mandamus as a vehicle to order a District Court to dismiss a case . The 11th circuit case speed is asking using mandamus to grant relief comes to grant the substantive relief ordering a District Court to dismiss a cas case. The point of this Court Decision in sewall was a should of been dismissed. Right, what im saying is the District Court in this case went through all the hoops. Everything needed to do in order to consider the issue of certification. The case was properly before the District Court. Wasnt a question that should been in another form. Our point is a should be in no form. In sewall the point was the District Court erred in dismissing and putting the case into executive agency. This Court Granted mandamus to say no, k should go to agency. Our point is the suit should be anywhere. Taking substantive action, in other words, this court youre saying this court can use the vehicle of mandamus to decide an issue in the case essentially just because it disagrees with what the District Court get. No, your honor. I agree as a lot of questions have tended it is to be a clear and indisputable legal violation. How did the court usurp its authority . For the same reason that in sewall efficacy court takes jurisdiction over case that the logs in front of an Administrative Agency court this court and the Supreme Court recognized that usurping the executive agency has a been a case, i would point to any case where the judiciary has asserted the power to enjoin the president of the United States in the exercise of his official duties you could call it ministerial, discretionary, but what precedent is there for the courts to step in and enjoying the president in exercise of his official duties, and what is the limiting principle to that . The only case im aware of that is done such a thing, with considering it and holding it at the appellate level is the 1976 case in the d. C. Circuit, that three times the Supreme Court has considered this issue of whether you can have a suit against the president for his official actions, three times that is, a three times the Supreme Court has rejected. Franklin, in nixon it said at a minimum congress had to speak to. That question raises the issue of redressability in the appropriate scope of any remedy against the president but youre making an assumption that that would be the actual remedy, an injunction against the president. If i understood the opinion in a related case, they set out a number of different possibilities, possible remedies including an injunction not against the president but against the Business Hotel itself or the third parties might be engaged in providing services or paying for services. That would not result in an injunction against the president. I dont think asserting the present subject to suit speeders and is responding to the point about whether or not we, if this case goes that far and were a bit far afield here but its in the store the case that any remedy would result in a direct injunction against the president. That may be true your honor and id be curious to hear what relief they are seeking but to emphasize, the point that i made that it doesnt matter what the precise form relief is, whether its an injunction or declaration, the point is absent a clear statement from Congress None of that can run speeders what is the remedy of this case with a violation that you allege, i admit you dont deny that was a violation so what is the remedy . The first question before you get to whether through the remedy i just talked about if you deny the fact that is the judicial remedy, then what remedy is there to control a president who might be above the law . Congress presumably authorize someone to actually sue the emoluments clause violation of that we could have interesting and difficult constitutional question was of that lawsuit is permissible but congress hasnt done that. The bare minimum the separation of powers say that this court should not allow a suit to proceed against the president where congress hasnt even bothered to authorize the suit in the first place. Right here, right in the center. If the emoluments clause, first it provides compensation for the president , so its revision. The other is a prohibition of extra compensation. What if congress decided to reduce the president salary while hes in office . What would be the remedy for the president . Its an interesting question. I havent thought about it. You have to because you think categorically thats an unprecedented suit, thats why he say what we should do here. You said congress hasnt provide a remedy and usages congress would have to do congress be the one acting against the president s right spirit wouldnt the course be the place he would have to seek remedy . I i will face the same exact thing as a highlevel that i said threat. The question would be is that suit authorized . Is their jurisdiction, a cause of action . I dont know the answer. I know a lot of federal statutes that govern what you can challenge like to pay of a federal employee. Even the judges themselves were able to go to the court to question their compensation. That might well be the case. There are cases involving constitutional provisions are outside the bill of rights that a been held to be nonjusticiabl nonjusticiable. The guaranty clause, the ineligibility clause, the incompatibility clause, the impeachment clause, the receipts clause. So there could be socalled infringements to all these clauses, but there are many, many clauses that are structural or at least outside the bill of rights that the Supreme Court has held to be nonjusticiable. Look, thats true but we dont have to go anywhere near that far to say that at the minimum before you could have lawsuit over it, maybe congress should have to offer such a suit. If i could make the last point because you asked about the body of case law. I dont want to miss this. Even their best cases, take for example, the seventh circuit case and fork for even that cae recognize that there has to be some safety valve if the District Court clearly abuses its discretion in denying 1292 b . The Court Assumed for the sake of argument there might be a way to direct mandamus in a situation like this and said nothing but a clear abuse of discretion. Talk about improper motive, egregious situation. It did not adopt any views of discretion because you need to insert a clear indisputable right. That is just that the language in cheney. Well, okay. You dont think a topic in indisputable right . Clear and indisputable legal right or abuse of discretion, its not like mandamus is limited to legal heirs. Is the standard youre looking for totally screwed it up, is that though he described the District Court ruling . Because i read the opinions with some care and what i saw was a very reasoned exercise of discretion on this interlock a tory opinion question, and i totally understand you have a goodfaith disagreement and that there is room to debate these issues but the idea were some kind of roving commission will be going to grant a petition for mandamus, its him can convince us that this accords accord toy screwed up their case seems to me to open the door very wide. Again all i can say is i do not know how you can reconcile that proposition. Sewall did exactly that. They thought the case was in the wrong forum. Nobody thinks the District Court did not have jurisdiction. No eye. Its even worse if you sue the e present when he cant be sued anywhere. It makes no sense speeders that is your position the president cannot be sued anywhere. Without an express authorization by congress he cannot be sued for his official actions. That is correct, your honor. What is the official nature of the action of taking money from foreign governments, tell you what his official about speeders i will say two things about that. The question is best directed to place because they sued him in his official capacity. Im asking you. The reason why they sued in his official capacity because the emoluments clause poses an obligation by virtue of his office, requires any officers covered by the emoluments clause did not accept emoluments. If he holds it is by virtue of his office that he cant accept these payments. So it is true that it involves his private Financial Behavior but it is the only reason the subject to suit is because he holds his office. Thats why its an official duty and thats why they sued in his official capacity. If you disagree to have an easy solution to this case, you should but you do have a clear and indisputable right in the suit, under a cause 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 provide no remedy. 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 any 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 generated essentially, were a peer it up. Were winging it. There is no history that authorizes it. Theres no precedent that authorizes it. There is the right conferred that authorizes it. Theres the remedy set forth that authorizes it. We are winging it, and the novelty of this, if this isnt off the rails, then i dont know what is. There are other suits involving congressional subpoenas and everything that presents closer questions, but this one is a lemon. Its the weakest of the cases that are spring up like jimson weed against the presidency in this environment. Others may have greater merit and i hold no grief for the conduct of this president , or of any president. But 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 contended here. I agree. I think that underage and would make a mockery of the respect that is due to high office of the president which must be considered every stage of the proceedings. Thats what cheney said. No president has done this. Essentially what youre saying, i understand is we have an emoluments clause, no doubt about thats the law. By the president can violated in every incident. You can have it hotel that competitively operates against the state interest here. You can have interest in which you can fight foreign dignitaries open to come in and take 500 rooms of the maralago. You can take all this think but at the end of the you are saying there is nothing you can do about a president if, this is an unlike most pebble, violated it in every instance, but your position is nothing to be done. Is that correct . Congress authorized speeders my question is, is that correct . Nothing can be done to remedy a president openly and without any reservations violates the emoluments clause, nothing can be done because the words would be, he is above the law, is that correct . No, it is not correct. It is a law . As the lost and right now just to them amend what the jus saying, no new action by congress is it anything that can be done . Not in the judicial remedy, as it does not make them above the law. That is what cheney and nixon versus fitzgerald speeders how about in this situation . Where we know that the president holds personal sustain for the emoluments clause is . He said they are phony, emoluments clause is. The president takes an oath to preserve protect and defend the constitution. He characterizes phony emoluments clause. Whats the relevance to that. Was i thinking a fair characterization what he said is hes calling the claims are phony. Hes not disputing the existence of the emoluments clause. He has called them phony emoluments clause was. I do stiff and is either a tweet or an offthecuff statements for they were written in 1787 in philadelphia, not in the bill of rights written in philadelphia in 1787, they have never been amended. And a witness disputing the emoluments clause is exist. Dont this is pretty they are important. The fair characterization of what the president is saying is these claims are phony because these claims are without merit what to do think that you unhappy im happy to get into the mix. I i know i welcome my time but it comes down to the bottom line with respect to the d. C. Circuit case, is it your view when you face the mandamus question and send it back to the District Court, was that an erroneous decision or simply an alternative form of relief. A permissible exercise of their discussion. I think it also done what we direct asking this court to do. That is permissible, then there wasnt a clear and indisputable right to mandamus relief. No, i dont think if theres no clear and indisputable right to mandamus relief, theres the d. C. Circuit denied without prejudice. They gave the District Court of last chance to avoid duly noted but it didnt grant mandamus relief. There was no error. No, they denied without prejudice and i feel very confident that the District Court had thumbed his nose at the panel and said not certifying it anyway. I think we would have a good chance of getting mandamus. The question you asked is why . Why would you construe a federal statute to put Appellate Courts and to support in a position where an Appellate Court can tell the District Court it clearly abuses its discretion. And hope the District Court doesnt thumbed its nose at it. We have listened arguments for several minutes, yet you still havent told us what action was a District Court legally required to take. The theme throughout the argument is the District Court was wrong because there isnt a cause of action spirit there are two things i think it was clearly legally required to do or at least clearly abuse of discretion. One, we think it should of outright dismissed the suit for a multitude of recent so you disagree with what the District Court did . How is that usurping his authority . I hate to repeat myself but for the same reason that it was usurpation of authority in sewall for the District Court to retain jurisdiction over the case. Do you have any other authority because its silly for us what might be at the sink chill factor between this case and soul. Which of no other authority . I was going to say again and maybe judge hears disagrees, in the ford case when confronted with exactly this fact pattern, what you do if, for example, a District Court should dismiss or should have certified, the court suggested it might be possible to what you do i agree only a possibility that will do is mandamus, straight out denial of the motion to dismiss. I agree its not holding but even their cases reckon i set and theres a good reason for that, just imagine a simple hypothetical which is a fact of the fifth circuit case. Imagine that a District Court the following, i know circuit precedent requires dismissal of the suit. I dont care. At a stop at the District Court did he. You might not agree with it but its no flat dash opinion. Look your honor, their proposition of law what theyre saying is that even on my hypothetical, no relief. Youre turning to argue on to your sink no matter what the District Court did you are entitled to mandamus relief. No, i have said repeatedly and estate again if this was a reasonable conclusion, recent judges could disagree, then i grew we dont get mandamus. Your temper clear and indisputable right, not just a reasonable. For all the reasons i said in many of the reasons judge wilkinson laid out i think it is clear and indisputable. Thats your strong disposition is to just say this goes so far beyond previous exercise of Judicial Authority and its such a Shallow Foundation that theres a a clr and indisputable right to have the case dismissed. Thats right, your honor. Mr. Mooppan, are you familiar with speed is not enough to suggest but i know what case youre talking about. The Supreme Court authorized and defined a writ of mandamus similar to in cheney, but it focus on come is said the writ is appropriate issued winter is a usurpation of power or a clear abuse of discretion. Your argument as interest and is both, that there was a usurpation of power by the District Court in taking cognizance of these cases, and in refusing to certify when the District Court said there was no disagreement about its conclusion in this case. It basically said it was right i know it can disagree with me. Right. To circle back, because you asked a couple times what do i think the clear error here was and its the two pieces he just said. We think was clearly wrong to not dismiss the case outright but second at a minimum we think it was clearly an abuse of discretion, it is at a minimum a clear abuse of discretion did not enough to set this question substantial enough to work interlocutors appeal. Virtually everything there arguing is totally unprecedented. Battle it is totally an president most of it is squarely Supreme Court and present. To say that is not a substantial legal question that warrants and interlocutors about review any case what its the president with the Supreme Court has said repeatedly that the respected teacher owes him, including mandamus to the idea he cant even get an immediate appeal to determine whether a suit against him should be dismissed the District Court and confronting this issue basically postpone the immunity question which were going to address next, in order to prevent appeal, and in connection with the certification basically answered the core question, is there a statute ground for a difference of opinion on this . The court said no. Even though the courts decision at zero precedent to support. It at less than zero because extent it was squarely in the teeth of the owner of the case. They agreed with us there was no standing. The only case that had against it, had available at the time and basically still said theres no reasonable ground for disagreement saying the Second Circuit District Court was spitters speed is of course on appeal the Second Circuit reversed that and this Court Reversed it so now we have dueling District Court decision, duly court of appeals decision, the idea anyone could say in a suit against the present thats not a substantially to question the want interlocutors review, speedy the d. C. Circuit court says it was a clear abuse of discretion. Thats right and you can understand its this case, i understand answering hypothetical but the fact of the matter is their legal position would mean that even if the District Court said im not applying precedent, i dont, i think its wrong, the Supreme Court open the gate, not a substantially question, certification tonight. Their position is nothing this court can do about it. If you dont have case because its been vacated. What do you say are those official dues that the impaired if the plaintiffs did get, what be the president official duties duties that are being compared . There are two different aspects of that question. In terms of the relief, its imposing restriction whether through declaration or injunctive relief on his financial arrangement because he holds office. Lets not skip to the relief because i think a very significant tommy, if the was relief what would be impaired, what official duties by the president would be impaired . I just told you what difference would it make in terms of how he performs his duty if he got the relief . He is being penalized by what official duties would be impaired by the present if the requested relief was granted here . I will say it again and assessing more i can say if someone told you you could not, could no longer be a federal judge to let you give up all your money, most people would think that is a very official actions. It is speedy that is not relief. Im happy to relief what relief there asking. It was not at all clear. Stop doing what youre doing. Injunctive relief, what about that . Injunctive relief, etc cant do anymore, just dont give anymore. Dont worry about what you have done. What duties are going to be impaired . I cant give a better answer to what howard katie. The other thing i will tell you that it do think is important is you have to member there will be litigation you forget to the relief. I have to go back to what you said about asking him, telling him he cant be a federal judge alessi give up all this money is issued. Its not. Its telling him he cant use his federal judgeship to make money. Thats what were talking about. There enough, and thats still i think clearly encouraging on his official power. It is restricting his ability to engage in financial the presidency speed is to be totally clear thats not an accurate description of the facts. Im just saying what you said is not accurate. Thats not at least in my view what is fair enough. Whatever their three is of what an emolument is, their point is because he holds office he cant engage in certain Financial Behavior. My only point is that is an incursion on his official power because it is penalizing his Financial Behavior because he holds official office. Council thank you. Thank you honor. Good morning, and may please the court. Want to start with why mandamus is not proper to certify because of lead that is dispositive of the case. Thats one of many issues in the case and so if this court goes further to deny the request to mandamus dismissal because a cause of action to seek Equitable Relief against the present under the emoluments clause is as if adequate state a kind the president is receiving foreign and domestic emoluments to the Trump International hotel. So to begin with section 1292 b , its a limited exception to the final judgment rule. When congress contemplated it it had a proposal before that would allow interlocutory appeal solely at the discretion of court of appeals. Congress rejected that i rejected it at the recommendation of the judicial conference because this was proposed by the judicial conference. What the one was a rule that requires the conference about the District Court and the court of appeals for interlocutory appeal to be taken. Let me ask you as a astor opposing counsel about the d. C. Circuit court in a very similar setting. The d. C. Circuit determine that the District Court order in that case, orders come squarely met the certification and did abuse its discretion in that self certifying the case before it sent it back. Once at an erroneous decision by the d. C. Circuit and how is it different from this case . I do think it was erroneous in this way. Because when the District Court declined to certify that is the first and last word on the matter. They were wrong . I believe so but whats important about the d. C. Circuit decision is it did not take jurisdiction under 12 nights to be. All did was sent back for reconsideration. If this Court Disagrees with me or thinks the d. C. Circuit got it correct, thats the most this court could do. Accept the court did say that failed to certify was an abuse of discretion, and if you look at 1292 b it has three requirements, only one of which is a core requirement, is that there is a substantial ground for a difference of opinion. The other two it has to be the controlling question of law. Nobody has disputed that. And it has to make you the chance education. The core question is whether there is substantial ground for a difference of opinion. If the court finds that is so then it must, not made, it must certify. The statute is mandatory, and so 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. 1292 b does have structure, and in this case the question was whether the District Court adequately address the question whether the was a substantial ground for a difference of opinion here both the d. C. Circuit and the panel concluded the District Courts misinterpreted that or misapplied that, or ignored it. And, therefore, should have certified. The d. C. Circuit suggested to send back and have certified. As you know it was certified. They just argued that what, last week in the d. C. Circuit. And here we basically said that we could send it back and have come back up, which was sort of a Ministerial Task after we had found they wrongly denied certification and we just applied the certification. The question is, if you would wish us to follow the d. C. Practice, we had a petition for mandamus before us we could say, i mean, 1292b certification b certification denial before. We could do what the d. C. Circuit did, send it back and tell the district judge to certify. Is that what you want . Theres a lot any questions or to make sure i address it. First i agree 1292 b has structure. That just the court has to be of the opinion that meets the criteria. The District Court and a third opinion with each of the grounds advanced by the present from wife 1292b certification was appropriate and was not of the opinion that the work in 20 questions as to which the substantial grant of opinion that would advance litigation. All three need to be certified. How can the Court Address a lawsuit under the emoluments clause on which theres only one opinion in the country, seven district of new york, and come which with i guess with the District Court said and say theres no substantial ground for difference of opinion . It was creating a lawsuit, the very arguments mr. Mooppan made were made to the distant corporate you cant see the president. The clause doesnt create rights picky goes on and on, and yet they can be no ground for difference of opinion and everybody sort of shocked at that notion that you could make that fighting. Especially when the only case on that point is against the district judge and he still says there is no difference. Why cant that be an abuse of discretion. Was that just a court acknowledged the fact that was speedy he basically said without analysis thats not applicable here because it involved restaurants and private hotels as opposed to the International Hotel in washington. What he said was into controlling question about when question question mark what law applies, not apply to the facts. Theres no dispute between the District Court opinion. Merely a difference of how the law is applied to the fact i think this comes from the macfarland case that is cited in just an interesting discussion about interlocutory appeals and mandamus and the rest. I feel we can get a little bit lost in the weeds, and before we start off on this journey, i would like to have some idea of of where we would end up weathers even the slightest merit to the suit at all. And a basic question that i have is where in all of this suit, where is congress . I have a feeling congress has just been left on the back doorstep to just freeze in the cold. Theres no congressional subpoena here as there is in some of the other cases. There is no congressionally created cause of action. If congress were concerned about the emoluments clause it could have and emoluments provision asserted as an article of impeachment. They couldve passed a disclosure statute or 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 case is that congress is wholly absent from it. We are just proceeding on our own, on our own, without a congressional subpoena, without a congressional action, without any kind of action of any sort with respect to emoluments. The framers put into the constitution two provisions prevent the acceptance of emoluments and its up to this court to decide how to inform and interpret those closet cla. Congress to be dressy billy to consent and speedy but when you say interpret it, youre asking us to sketch something off a completely blank slate without any kind of congressional input at all. And in the steel seizure case, Justice Robert jackson counsel against a Single Branch of government charging headlong into matters of the highest moment all by itself. Now, in that case, it obviousy concern the actions of the executive. And how much more true is that lesson in 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. First is that its longstanding that plaintiffs may seek injunctive relief to force specific constitutional provisions. That we know from armstrong. Thats the input of congress. Secondly, we have framework. Congress through things like the executive branch to the office of Legal Counsel, the comptroller general from the legislature have informed emoluments clause is and what we know that many of these structural causes are not self executing and its crucial that the emoluments clause is not placed in the bill of rights and confers no rights. I would say most of the provisions in the constitution outside the bill of rights are not self executing. It depends on something that congress has to do to get the ball rolling, if you will, and to say that we can do all this on our own, we were coming to position where our political differences, and there is a political overlay this whole action, make no doubt. 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 traditional authority. And ssa, we are we are coming to the point where elections and legislations are becoming relatively less important, and judicial meetings are becoming relatively more important, and we are again acting on our own. How much on what would be more firmer ground, if were acting in concert with caucus, arm in arm with congress, instead of charging ahead on our own motion without any backup or foundation . I think the Supreme Court addressed this in Free Enterprise with said that as a general matter you dont have to look a constitutional provision by constitutional provision. We know for in a price you can look at the appointments clause. I dont believe its limited just to the bill of rights but its longstanding where if the officers acting ultra virus which the president by accepting emoluments despite two very clear constitution provisions that Equitable Relief is available to enjoin that. We think where on firm footing through a series of case in which courts have not hesitated to none of those involved where stating the obvious, none of these cases involve the presidency. Federal offices or something state offices in general, and as i read the cases, all of those fall into one of two buckets. They fall into either the bucket, theres an underlying cause of action can we dont have any emoluments clauses, and number two, they fall into the bucket of using litigation to address the defense to an enforcement action. All those cases dont involve the president and fall into those two buckets which this doesnt fall into. To refer to those cases were talking apples and oranges. It did not act as a bar against proceeding against the president. The lower federal official obviously would prefer that the relief run against them, but nteu squarely says form over substance would you say the president himself is immune simply because theres nobody else to sue. Thats the d. C. Circuit case . Thats the d. C. Circuit. And swann versus clinton and next, about the cause of action question, i think the Supreme Court was quite clear in armstrong. Millions armstrong has taken away the ability to take away equity jurisdiction, its objections by federal officers so i think those are the two strands of your questions and i think the case law squarely is in our favor on that. Let me ask you one other question relate today something you said earlier. You said theres two times the constitution deals with emoluments, theres actually. Is it your position that the definition of emolument in article 1, section 9 is the one youre asserting in this case . There are two provisions, exception of emoluments, fon and domestic emoluments clauses and emoluments of offices. Go ahead. That means profit, gain or advantage and all three of the constitutional terms. But theyre tying it to the particular office. We dont see that in the foreign or document emoluments clauses and thats how we know the framers were intending that to be the broadest readings. Those prevent the president from doing precisely what hes doing here. Your opinion is emolument in article 1, section 9 is the same as article 2 section 1, and article 1 section 6 . The definition of the word emolument doesnt change, but context by the word around it. Emolument of office you know its tied to the office. When you have the foreign emoluments clause, any emolument or present using any four times, then you know youre supposed to be reading that broadly. The words of any constitutional provision has to be read in the context of company in which they keep. In the foreign and domestic emoluments clauses they mean broad to reach any profit or advantage. If the president were to buy a bond issued by a locality or a state under your definition it would appear the interest the president would receive on at that bond is an emolument . We look at not just the text, but history in practice and olc issued several opinions that dealt with your definition seems to run contrary to that. You seem to say any and you seem to have a broad definition of that and you just said not necessarily. How would you differentiate one state bond from another state bond under the domestic emoluments clause under your definition. And so judge agee, whether or not the president is getting a particular advantage not able to everybody else, if its the same interest from a bond that any bond holder is entitled to, i think following from the reagan that dealt with pension payments which are similar, i think that would not run afoul of an emoluments clauses. But its a discretionary decision of state giving him something that others were not entitled to that would be a profit, gain or advantage that could fall within the emoluments clauses. Your definition now, unlike the complaint, is a profit, gain or advantage that is different from what everyone else gets. You look how the comptroller general and Legal Counsel interpret to give it context. We know from that opinion, if the president were to get a drivers license, thats not something a profit or an advantage thats going to him. Thats something that neutrally and nondiscretionally available to anyone else. So its not any profit. Its only certain profits. I think its not a profit or an advantage when its something available to everybody. It has to be a profit. If you bought something and getting a return on your money, it has to be a profit. So, the reagan opinion thoroughly analyzes this and stays its a nondiscretionary, readily available to everybody else in the pool, via the bondholders. What about a situation where somebody comes into office and owns assets that have been giving them dividends, in this case the hotel was in existence before the president took office and he with a receiving the income from the hotel before. Like anybody else who would own a hotel or a motel or any other business enterprise. Does that fall into the class of available to anybody else . When before he was president he was absolutely entitled to foreign and domestic ments i understand, but he didnt change his status there except that, as i understand it, hes not even receiving those benefits, hes doing something else, donating them to the government or whatever it is, but set that aside for the moment, he his status with respect to the hotel is the same as it was when he was private citizen and every private citizen who invests in something is entitled to receive the returns. He held onto that asset while hes president and getting the very same absent his donation now, hes getting the very same benefit that any other member of the public would. What im trying to do is to find out what the scope of your distinction in response to judge agees question is. Because it seems to me hes in the same class of persons that receive interest on bonds and youre saying that bonds dont apply yet, income from the hotel applies and i dont know where you get that from the constitution. Could see it. I respectfully disagree, judge. What changed when the president was president the emoluments clause applies to him and he needs to cut them off why doesnt he cut off from the bond interest. In other words, in response to the question, and this whole may be immaterial to the operation were talking about, but im taking you to task, youre now creating these niceties in what is an emolument and youre saying the interest on a bond is not an emolument for some reason, i dont know why under your definition, seems to me it would cover that and everything else. Im happy to explain why. If the interest on the bond is a fixed amount he receives whether hes president or whether hes not and the same amount that anybody else receives, the type of nondy discretionary benefit that theyve found not to be emoluments. If the president by virtue of becoming president and especially because hes made himself available to accept and invite i want to make sure i understand on this. What is it youre asking us to do . So i think that this court has a wide range of injunctive remedies, and the cleanest would be divestment from the hotel. Do what would respect to the hotel. That he would divest him from the hotels. And what are you asking in the appeal. Youre not going us youre asking us to rule on the 1292 b question. I would ask the court before starting a journey id love to have an idea where to end up. And it goes to the whole redressability of standing and i would like exactly to know what youre asking. I mean, we cant enjoin foreign business from using the hotel. You cant put a single asset in a blind trust. What are we to close the hotel for the president s term to cut off any Beneficial Interest that the president has in the hotel . Is strikes me that these are pretty bold examples of interference to undertake without some support from congress. But what do you want from us . What are you asking us to do . Well, i think judge wilkinson has a great question and i would ask that you also address first, what is the injury that you allege occurs here and then tell us how this injury gets addressed. Get away from bonds and things like that. If i may take the questions in order. I think that judge moss and king were asking what i would like the court to do here in this case and that would be to deny the mandamus petition. All you want us to do. All i want you to do and secondarily as the d. C. Circuit found theres not a clear and undisputable mandamus where do we end up . You dont get on a train unless you know the destination. And so to answer, judge wilkinson, your question what we want at the end of litigation, injunctive row leff for we dont know what an emolument is. If the 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 making it up whether it is or it 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 busine business and not so successful businessmen, would they even want to go into Public Service if theres going to if their Beneficial Interest is going to be cut off and if theyre going to have a devestiture disfavored in equity some sort of fire sale . Are we making the Public Sector and Public Service increasingly hostile to the to those with a business background . Obviously thats only one of many, many backgrounds that should inform governance, but were trying to erect bars and hurdles to those with business experience getting into Public Service because the one thing they would like to know is have some sort of certainty as to what to do and what would happen with their investments and their assets, and were providing nothing, but the way a way of certainty, but a gigantic cloud of uncertainty which cannot help, but operate as an impediment to those with a business background seeking public office. I think theres a lot in your question, judge. There are federal officials with business backgrounds that deal with emoluments clauses all the time. Thats why we have a body of legal count from the president to those who want to live in the foreign countries. And the office with emolument was president carter in violation of the emoluments clause when he continued to have a Beneficial Interest in a peanut farm . He put his peanut farm into a blind trust. Im not talking about the meaning of emoluments at the margins. Were talking here that the president is using the hotel to solicit domestic and foreign business. Hes keeping the hotel open at a market rate. Why is it using the hotel to do this and that and whatever. That may be the problems where judge wilkinson outlined might be a problem that you would have down the road. Absolutely. We are not deciding this case today, are we . And thats my response to judge wilkinson. Were the inception of does not go to the president s internal affairs and puts this far afield of cheney and if we cann cannot aspects of Summary Judgment or if we prevail, the court comes back on appeal and raise the questions that hes raising now. Im sorry. Counsel, if i may. Id love for you to address judge diazs question from earlier, he suggested that the end of the day and i understand your divestit ruchlt it does not run to the president or a corporate entity, but to some third party. Is that part of the claim that youve made as a Third Party Injunction . No, i think its possible. The Second Circuit has a couple of varieties. We think that divestment is the cleanest option. We want to separate the foreign and domestic profits from the president and can be accomplished in several ways. Do you need to have the third parties in order to have an injunction running against them . Respectfully, i think that the Third Party Injunction is curious because the president is the party in the case. We think that devestiture against the president , something in equity to stop an act is available to us, but this will be framed going back to but the president is the party to this case. Its not the third party is not a party to the case. Its the president of the United States thats the defendant in the case. Thats the party. Judge wilkinson thats not why im not advancing what the 2nd circuit had in its footnote. There are a variety of options as the judge notes, by the facts in litigation on the ground and the president. I have a question on that and youve noted from the outset and curious in thats true or why thats the case. If emoluments 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 . Well, judge, weve made allegations of foreign and domestic governments have been spending money at the hotel or for example, at gsa lease is an emolument. We have pre pounded discovery to see if they have substantial. If they do, we believe we had be entitled under our definition of emoluments, targeted discovery which add does not go to the office of the president , if the result is we can prove our claims we go forward. I guess the question is, your definition of emolument as any gain or profit, right . So if foreign officials spending money at the hotel, and we have newspapers saying that they are, then the gain flowing from someone who has an interest in the hotel, you say, is satisfied under your definition. So i dont i guess im curious what discovery would produce for you other than, you kind of answered the legal question in the District Courts, right . I think that newspapers alone are not discovery that show that allegations are proven. I think we feel confident that we will be able, moving forward to prove our allegations. I guess you dont need much though is nigh my question. You dont need daniels damages, you need one stance we think this could be resolved quickly on motions for Summary Judgment and if the president is dissatisfied or we are we turn to the court. You think it will take about six months of discovery, thats not particularly quick. I confess im no trial lawyer, but in my limited experience, it takes longer than is this a routine Business Case . We think this could be expee dishesly, and six months to discovery and judgment as to whether the president is violating the emomments clauses is not like the protracted discovery that ive seen when looking at trial records. If i could ask back to your question that divestment 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 and i think its not unique in the constitution, are clauses that affect an individuals private behavior by virtue of their individual position. My point though the devestiture would be done by the president as an individual, am i right about that, if thats what you seek and we got past the other hurdles and thats what was order snd. Certainly, the president is he end of the day so you would seek essentially and an injunction at the end of the day that requires the president individually to do something. Yes, by virtue of the fact the emoluments clauses apply to him in his individual capacity. And hes not a party in an individual capacity in this case. The emoluments apply to private behavior of individuals by virtue of their federal office so the emoluments clauses only apply to president s as an individual because he is president. So asking him to divest the hotel or whatever the outcome might be is no different from any federal official and i think that llc to private conduct. Thats olc opinions that say it was okay for the prince of prussia to give gifts to people. I mean, those are helpful for us to look at, but i dont think they really bind us a whole lot. Certainly theyre not binding, but they form the practice and i think we know that federal official because the foreign emoluments clause applies to those, including all of you judges, have to go to office of government ethics to figure out how to deal with this conduct. Yes, sometimes that involves affecting your own private conduct to make sure that foreign and domestic officials cannot ingratiate themselves to the individual in the private conduct. So i do see that im out of time, but want to get back to the fact that this court should not reach any of these interesting questions at this point because we are on a mandamus petition let me ask you if, under the relief that youre proposing, if the president were to transfer his ownership interest to his son, that would end it, right . Absolutely. Assuming his son is all right, let me i want to lead up to something. The hotel would still be called the trump hotel, right, and you would expect that foreign officials will still spend their money there, but instead of the money going to the hotel, the money goes to the president s son, right . Under that relief. Yes. Okay. So we have a hotel in washington called the trump hotel where of the profits are spent by foreign officials and the profits go to the president s son and the people keep coming. How is the state of maryland adversely affected that the money is going to the son rather than the father. Well, with respect, thats a hypothetical thats a hypothetical, but what youre requesting. It doesnt go to the starred of course it doesnt. It airs no demonstrable, logical, economic effect that the state of maryland is hurt by the fact theres a dividend or profit of some kind paid by the hotel to the president as opposed to paid to his son. The competition interest that is being talked about in this case is the existence of the hotel named the trump hotel in washington in competition with the facilities owned by the district of columbia and maryland. No, its the ability of foreign and domestic officials to engrash ingratiate the president specifically. You think thats going to change. The president doesnt get right now as a matter of fact, i understand the president doesnt get any of those profits from the foreign agents. So instead of his donating them, he just gives his interest to his son. Its not going to change a thing. Were under the same status quo and the state of marylands interest is so attenuated it goes through the fact that okay, that somehow is going to increase the benefits to the Convention Center in maryland and therefore, the state of maryland has an interest because now theyre the hotels competitive interest is diminished and marylands interest is increased and maryland now has a standard and thats the competitive entry alleged. I cant figure that out. Our competitive injury is not being able to compete on equal footing because we can offer the same amenities as trump hotel, but cannot offer the ability to ingratiate because of the president and youre not removing the president from the equation. The president can still invite them there. All youre removing is a stream of income that goes from the hotel to him as an owner and if we divest and have it go to his son, he assigns it to his son, its still the hotel and he can still ask the prince of saudi arabia, whatever, you ought to come and stay in the hotel. Is that an emolument. Hes not the recipient of the profit and thats not an emolument. That adversity reflects on maryland because his son is getting it. That would cure the inability to compete on footing doesnt change the competitive formula. Theres no calculus in which that transfer from the father to the son changes competitive analysis, thats what the 2nd circuit says. I respectfully disagree youre suggesting no economic actors would change their behavior if they didnt ingratiate them to ingratiate, theyre going to the hotel and the son gets the profit and the president asked them to come. While we find that dissatisfy tri the constitution doesnt speak to. The constitution speaks to the president through his own private businesses getting and receiving foreign and domestic profits. In other words, emoluments clause to the president not other folks, he could ask them to go to a bunch of clubs as long as its not the president who may get a benefit from it, but let me ask this question because im curious from the opponents position on this. Even if you went to discovery, proved everything there and more of what was going on, my understanding is that the position of the president , you cant do anything about it because congress hasnt acted so theres nothing you can do; is that true i think that the worst case scenario, dont take the minimal, go to the worst. The president gets up there and says that on loudspeaker to everybody, if you come to my hotel, its a good thing and i need you to come here and advertise and just be here. Nothing can be done, is that the end of the answer . Thats absolutely his position and i think thats fairly by armstrong and a long lineage of cases to enjoin respectfully thats not his position. His position is not that nothing can be done. His position is that theres a political process whereby something can be done, his position is that theres a congress that whereby something can be done. His position is that theres a court of Public Opinion by which something can be done, when the president wanted to hold a g7 convention at the island or whatever, people didnt throw up their hands and say theres nothing that can be done. There was immense pressure brought against what was an overstep in using that particular piece of private property for a piece of public business, but that puts that shows you that, yes, something can be done, litigation is not the only way to getting something done because there was an immediate corrective to that doral business which caused the president to back off from what many in congress across party lines thought was a terribly inadvised step, but it isnt fair to his position to say that its nothing can be done. Its just that there are other avenues than this particular manufactured suit. Let me be clear because i think judge wilkinson makes a good point. Were not talking about nothing can be done, but lets speak to reality. Essentially, everything, even the doral instance is something the president chose to do. No one could do anything about it, the congress hadnt done anything. Public opinion can be there. What im saying is that the powers of court, separate branch of government, if you have a congress thats absolutely inactive, and i think we can all accept thats probably the case here, a president who takes, goes right up to the line or right over the line, this court ap the courts as i understand it, the courts can do nothing about it. That is what i understand his position to be. And judge wilkinson, the fact that there might be a court of Public Opinion does not deprive this court of equity jurisdiction, the fact at that there are multiple ways to skin the cat except the constitution designs the mechanism and its not to have him engaged in private litigation to impeach him to remove him from office, or vote him out of office. But to sue the president is a matter that is unplowed ground and under the structure. Constitution, the Supreme Court has not been very kindly to that and now we have this District Court that says we can sue the president because thats what i think. The Supreme Courts decisions in nixon versus fitzgerald pan clinton versus jones speaks to this, the president is not immune in all circumstances. When youre not looking within the official workings of the president were talk about things further up the margin and expressly prohibited by the constitution and were back in the armstrong territory of this courts equity jurisdiction. My view is not that the courts are powerless. The courts are not powerless. The courts can do a lot, but were in 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. Were at our weakest possible posture in this case and i fear that were going to be tossed into the partisan scrum which is unfortunate because i think that when partisan fevers grip the country the way it is, it is best sometimes for the courts to back off and say we dont want to be part of it. We want to be dedicated to what we all are dedicated to, which is the rule of law and i cant see how the rule of law is vindicated by a search thats wholly unpress departmented in nature and thats taken on a solo basis. Were flying solo. And taking a provision which is not selfexecuting and writing our own cause of action, which is the last time i checked, i thought to be a legislative, not a judicial matter. So, i know im well over my time, but i have a few responses. First and foremost, this is not a political suit. This is an action where the president has taken unprecedented step taken by every other president and not to quibble with my good friend judge wilkinson, whatever this is applies to every president , doesnt matter the party they belong to. What were doing is essentially, its not just this president were talking about, well talk about every future president and what we do today is going to apply across the board and this is not the om instance this may come up. Absolutely, and we know that because every other president has sought guidance from the office of Legal Counselor the comptroller general how to order their affairs. Were here because President Trump has not were here to determine whether a rit of mandamus lies and were having all of these interesting discussions about what might happen when this case comes back to us. Counsel, arent we really here to determine whether the District Court has usurped its Judicial Authority and id ask you if you would to get us back a little bit to that point that i think is the point at issue today. I agree its where i started judge, because i think its dispositive. Every Court Considered the question held that mandamus is not an appropriate difficult to demand a 1292 b certification. And judge explained that congress intended there to be a dual what about the 11th circuit case that your friend cited at the beginning of his argument. The 11th circuit case i think is similar to the d. C. Circuit case to certify. He relies on the fifth circuit and mcclellen face and i think the same as the 11th circuit. When it came back to the 5th. The District Court had the jurisdiction or discretion to deny the certification decision even though the 5th circuit had put its thumb on the scale and i think that speaks to the fact that the District Court is the first and sometimes the last. Is it your view that this sort of duel gate keeper role that 1292 seems to contemplate is absolute in every case . It is because its a limited exception to the final judgment rule. Do we need to say that in this case . I think this court will have just to apply it when the District Court is of the opinion the certification can be appropriate and whether to take it. The District Court in an opinion was not of the opinion that 1292 criteria were met. If the president wants to come back on an appeal of judgment or cheney type situation or some order he finds odious, thats a vehicle to get back to the court. Why dont we dive into this case and go through rounds and rounds of discovery and the like without having the slightest idea of what remedy we want or what the source of the right is, and all of these other questions. Its like, you know, again, its like starting the journey without knowing where youre going. How many people buy an airplane ticket and get on the plane and have no idea where the planes going to land . I think i know exactly where this plane is going to land. We believe weve boarded a plane to have the president not to accept foreign and domestic profits through his hotel. We think the end of that is injunctive relief. Thats generallization and gives guidance to no one. There are in the complaint. Allegations since the complaint wins the main governor, the governor of kentucky. We believe weve cleared the the whole purpose of litigation is to figure out where the plane is going to land. You never have any absolute certainty in any case, thats why we litigate process. Thats part of the litigation process. We think were head in the direction we want to be headed in and cleared the threshold. I dont want to continue the plane analogy. But weve gotten through tsa. And where it takes us, i think that congress expressly mandated that on to have a litigation process you have to have assertion over right and plausible cause to remedy. The pro em problem is theres no right by anyone on this particular provision. The Supreme Court has reject that had time and again. If you look at Free Enterprise, if you look at there are structural provisions of the constitution that those, especially states. More often it held them n nonjustinable. The bulk of them have been held n nonjusticeable. And this particular emoluments clause was placed where it is and not in the bill of rights or in some or without any rights conferring language. Just as we believe its a routine exercise of this courts equity jurisdiction to vindicate structural provisions of the constitution. Of course, thats not a question the court needs to reach today because what were looking at is whether mandamus is appropriate to take jurisdiction under 1292 b. We think its not and the secondary question, whether or not mandamus can outright dismiss as appropriate. We did not and they agreed with us, theres no relief to dismissal the d. C. Circuit said its not going to wade into the question of mandamus. With respect. It not whether mandamus is 1292 b. Im speaking to the second, which is mandamus to outright dismiss. He has not shown a clear and indisputable right to dismissal of the complaint on either of those grounds. So absolutely it declined to wade into this brewing circuit split whether mandamus of 1292 was appropriate, but clearly says but mandamus is focused on usurpation of the power, the Supreme Court recognized that you can direct the court to get out, which is dismissal. And so, there are two avenues for mandamus, 1292 b which every court had 1292 b was the mandamus was because the court refused to let us review the question, but the question comes up because the court made an analysis under 1292 b that was a clear abuse of discretion. The question then comes, its a clear abuse of discretion was exercised or abuse was exercised in a circumstance where the court usurped judicial power and the Supreme Court, for instance, in the slaggenhoff opinion says those are the two alternative things. Or clear abuse of question and thats in cheney. And considering that very question, the d. C. Circuit held they did not have a clear and undisputable right of the suit. It didnt get into it. A clear abuse of refusing to certify and asking the court to look at it again and as you know, the District Court certified and went back up and thats where it is. So they took an extra step and they didnt take that step. I want to be clear about the two types of mandamus the president is seeking, 1292 b certification. The court elected not to weigh into and thats what the court of appeals found sob inappropriate. This is outright dismiss to the complaint. The d. C. Circuit considered there was acquittal on that basis. And for many of the reasons that the circuit found on the underlying order, but also because of the court of appeals considered the 1292 b question. I know im well over my time. Thank you, counsel. Thank you very much. Four points id like to start with the mandamus standard and judge, keane, i want to address some of your questions about that. Youre absolutely right that mandamus is extraordinary type of relief and only available, let me quote. The burden of showing the to the right is clear and indisputable. Here is what cheney further said, its very important. Only exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion or in injunct tiff Supreme Court made totally clear that a clear abuse of discretion does satisfy one of the prongs of the mandamus standard. Point two, now let me show you why that standard is met here. Start with the 1292 b standard and judge diaz as i predicted during my opening argument. Her position is that no matter how flagrantly the court abuses discretion under 1292 b theres nothing this court can do about it. You asked it point blank and thats the necessary position. She has to read 1292 b to strip this court of any power to i guess im not following why thats right as i understand her position ap its awkward because shes not standing up there anymore. We cant use mandamus to order a District Court to a certain position under 1292, but theres alternative ground at issue in this case we could use mandamus to order a District Court, you know, to quash a particular discovery subpoena. We can still get at the underlying problem if we think a District Court has usurped its Judicial Authority and she goes on to say, thats not as the d. C. Circuit held. That one doesnt apply here because theres no clear and undisputed right. Again, your honor do you understand the position differently . I think what i would respond to is, shes saying theres no way at all to get at the abuse discretion in the certification. As i told judge keenan and the rest of the Supreme Court, abuse, clear abuses of discretion are available mandamus is available for it and shes saying that something about 1292 b strips this court of that general power in in particular context. In this particular context. Why does it matter, why i thought even your opening argument and it was certainly an argument before the banl, this would be a lot more straight forward if you direct mandamus to dismiss the case. Who cares if you can get the District Court to ill say two things about that, your honor. One i certainly agree that you can do that, here is why it matters. It matters because of judge knee meyers question. The clear and discretion amount whethers tle a substantial legal question. This court wouldnt have to bite off the question whether it was clear an indisputable error to and controlling to the excuse me and i read the District Courts very careful standing on this. The government had only identified one of the possible. And even if you got an interlocutory appeal on that, it wouldnt bring the litigation to a quick close and on merits and would have a cause of action. There was not only substantial difference of opinion, but things that were particularized to this particular case, the litigation strategies of the parties and so i feel that were not really discussing the basis for the District Courts decision. Your honor, that i know the District Court said those things, but had as got to be incorrect because one of our theories the president is not at all if were right about that, the case is over. Theres nothing to talk about. Theres foe further proceedings, theres nothing, the case is over, so if we are right that theres at least a substantial legal question about whether the president is subject to suit, it is a clear abuse of discretion. Theres a substantial legal question as to standing which youre arguing about before. The District Court might still be right i have a longer answer why theyre wrong about that we we could put in our brief. They misunderstood our theory. So we should put they clearly misunderstood our theory. If theres substantial legal question, ill describe in a second. If thats a clear abuse of discretion, a clear one, shes saying that we cant you as Appellate Court cant do anything about that and thats to use her example like if tsa let a guy through with a loaded gun and the supervisor says, well, i hope he doesnt bring down the plane. Theres nothing about 1292 b that puts this court in that position. Frankly, i think thats your position, no matter what the president does, theres nothing the tsa or the courts can do. Thats leads to my third point. Franklin versus massachusetts the president is not explicitly excluded from the apas purview, but not explicitedly included either. Out of respect for the separation of powers and unique constitutional position of the president we find that textural silence is not enough to subject the president to the position of the apa. Our the apa is in the constitution of the United States . Its a statute that authorizes constitutional. Right, its not in the constitution. Thats correct, your honor, a clause. And does not allow people to sue, as she pointed out correctly, shes your colleague on the other side. Yes, your honor, my colleague on the other side, i apologize. Counsel counsel on the other side pointed out correctly that other claim is know the based on the constitution itself, it is based on an implied cause of action in equity. The courts quitable jurisdiction comes from congress. If you look at the Supreme Court decision in grupo mexicano, its implied and thats why the quote from franklin is so important. The quote from franklin, absent a clear statement from congress, you can sue the president , even if you set aside franklin, if you look at the Supreme Courts equitable cases they say in grupo mexicano, it has to be the traditional form of relief. If its traditional forms of Relief Congress can do it and they cannot point to a single instance where the Supreme Court or the 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. Yes. The Second Circuit didnt reach discretion. The District Court only addressed. And nobody mandamus there and no, because we won in the District Court. There was reversal over your win. Right, so you asked why the 2nd circuit. We won on the District Court on zoning and the District Court the 2nd second didnt the gist of the questions that have come here is that what were supposed to do at this stage is it to look down and see where youre going and if we cannot forsee that you would be getting relief, then we should grant mandamus. Isnt that fair . I think that we want to see where the airplane is going before we get on. I think its clear from right now that that airplanes going to crash because i understand what youre saying so thats your position, so that the 2nd circuit could be contrary to that. The question wasnt presented. The District Court if you question is, because the airplane flies, certainly was. Your honor, the Appellate Courts dont rule on questions that the District Courts dont rule on and thats why they didnt address it. In this discussion today there are a whole bunch of questions that havent been ruled on yet and if were not supposed to address. Every single one of the arguments ive made thus far, we argued below and the district rejected. Is there a reason the government did not seek mandamus in the Second Circuit to dismiss the case outright because whether or not theres standing, nobody can sue the president . I guess that by the time you got to the 2nd circuit. And we all right. Any alternative grounds . We won below on jurisdictional grounds and so, you could affirm alternative grounds on nonjurisdictional basis. Well wait to see. One last point, indulgence. Two quick points about the merits. There have been a lot of concerns and understandable and i understand why people would be concerned about the president being able to act about the law so its important to emphasize and conclude my argument why a brief explanation why we think its wrong on the emoluments clause. And i think one of the points ive made was reflected by the judges. The theory cant be right and abandoning this discretion, apparently they said lets look to history and this will be my final point. In 1810, and we pull this out in our reply brief. In 1810, a proposed constitutional amendment to extend the emoluments clause to all citizens. That was passed by three quarters and the states. So almost the entire country almost passed a constitutional amendment that said that foreign diplomates could not buy food, or lodging and staffer in the streets, thats what the emoluments clause would require. Its not tenable, a historical and interpretation of the emoluments clause, the clause has never been understood to cover profits from commercial transactions. Thank you, your honor. Thank you. Thank you, may it please the court. This appeal raises two questions, first, does the court have Appellate Jurisdiction over the president s appeal, such as denial of immunity. Second, is the president correct the claims against him in individual capacity should be dismissed on one of a number of grounds asserted below. The answer to both questions would be yes. With respect to the courts jurisdiction its clear that the president s absolute immunity was denied from below. Theyve the resolving this from the outset of the case. When the District Court declined to do so and instead opened discovery. President was subject to pretrial procedures and could dp to this court, jenkins and nero. Where did the court decline to do so . The court failed to act on the motion which had been pending for a number of months, declined to address multiple requests from us, the fact that the motion quickly i had thought the courts said he understood and he was thinking about this and he would be rulingen it . Thats what the court said at one point when i think it was twice. May have said is twice, but motions to dismiss by the government were decided, you know, by the end of the summer, august at the time. We asked for a status Conference Since discovery began to move forward. It was open by an order of the court. In december, we looked at a debt of conference and two weeks went by and the Court Address our concern. So on the day you requested another ruling, actually in august you said the earliest convenience and then in december, you requested it again and onnen the very day you requested if, the Court Ordered discovery. Correct. Six months of discovery program. The time of the discovery order, it wasnt, again, the president in his individual capacity. Is that correct . Well, the discovery order reached a number of third parties, including some of the organizations that are associated with the president s business operations, but that point is neither here nor there because in proceeding discovery against anybody in the case where the president remains a defendant is subjecting him to pretrial procedures and if you remember the Supreme Court addressed the question, there was a suggestion by the parties, theyd hold off with respect to attorney general ashcroft. They said no, the discovery puts the president in this cascase in untenable position. To protect the development of the record and assert the right that your client might have and therefore be subjected to the effective denial of immunity or take an appeal. And thats consistent with this courts decision. And in jamieson and nero and what about al shahmari case . Which . Its in 2012 its in bank case and we said that the disputed questions that arise with respect to clamgs of immunity are subject to discovery if the court wants to be informed. Even the party whose assertion of immunity worthy will submit to the burdens of litigation until the court becomes sufficiently informed to the rule. That may be true in some respects. Thats our in bank precedent in 2012. Well, certainly there are there was a collateral ord order, qualified immunity case, not actual immunity. Ill give you that, absolute immunity is even in that case, the fact that the District Court may deny qualified immunity and comes up and some further procedure is necessary doesnt apply in this case. You have everything you need to tie the immunity case. The only other choice, again, and remember that once we did file an appeal, rather than it was prepared on the question of absolute immunity. It was the court that raised the question whether the president in his individual capacity could be dismissed for the case. I dont ng theres a basis that its coming from the District Court and discovery was theres a lot of things the District Court told us twice it was coming. Correct and once it opened and you have to, this is your only basis for appeal is interlocutory order. Yes. Well, its the only basis for the interlocutory style of immunity, and affirmed by the Supreme Court, if it all makes it crystal clear. Once were here im sorry, unless we invoke collateral order doctrine because we find somehow the District Court denied you immunity. Do you have another basis for appeal right now . No, denial of immunity is our basis. All right, lets talk about denial of immunity, so you rely on two cases from this car. As well as fall, yes. Well, lets talk about the two cases from this court, jenkins and nero. Correct. Neither one of them are this case, are they . Well, in those cases you had the benefit of a plex explicit order of the court. Right, a denial of immunity is different than i am going to reach the question of immunity, but not yet. Denial of immunity is no less a denial by nonaction for the District Court as it is from an explicit action of the court denied and. Cite me a case that says that. I think we said in a number of cases from others that effective denial. We dont have an effective denial. Are you a litigator or just appellate lawyer . I dabble in the arts of litigation. There you go. [laughter] so you know how the district of maryland historically has had cases waiting to be ruled on for motions to dismiss for three years. And ments so seven months it nothing. Thats ordinarily not a problem. But setting aside the fact it involves the president of the United States and careful and adequate attention to the matters. Once discovery is open, once there are dozens of once the president are there any subpoenas against the president in any capacity. And the president s interest counsel, there are cases from other circuits about these sort of defacto denials of immunity, but are there any like this where the period of time is so short and doesnt seem unreasonable. So theres no you be reasonable delay. The court court is saying, im going to want it and yes, discovery is open, but not as against the party who is seeking discovery, i mean, who is seeking immunity. And i understand your point about the government and the personal capacity lawyers have to attend the deposition, but theres no order of discovery ordered against the actual party seeking immunity. I cant find any case like that, when you add up, no unreasonable delay and discovery against a Different Party that i will grant you implicates the interest of the party. And the court is saying, im going to rule on. We can say theres been a defacto denial. Its the lack of a case that its going to be on all not even on all four. I guess i am troubled by fact that it seems to me that for us to say theres been a denial in the face of the District Court saying im getting to this is a difficult lift and you dont have the thing that makes it that the other courts rely on to do that. We dont have the two things, unreasonable delay or discovery against the party seeking immunity. So, im sort of troubled how we filled that gap. Again, you understand this and i think generally of a matter how litigation works, its whether or not its not just that, its discovery requests and all sorts of of course you could try to mandamus that, a discovery order. Right . I mean, you wouldnt have to have the president do it in deposition. You could come into court and get some relief. The problem at that point is our immunity defense is not adjudicated and its clear about that well, the decision on immunity, you can appeal that interlocutory. Again, i dont and respectfully, i dont think its that heavy of a lift. Because if the district is saying, literally in those cases its one sentence. Im not going to rule at this time. I need more information is affecting immunity. Then a statement that i will rule on immunity eventually, but then the initiation of pretrial procedures. We said no in the al shamari case, we said no, and youve got, could change that said no by 114. And is there any case that says that . Well okay. [laughter] fair enough. I dont think that the principals can dispute that. Everyone i think agrees that absolute immunity is immunity from well, theres another interest that we you can recognize there may be some limited discovery to make an immunity ruling, but the discovery in this case was opened up not it was not, its just the opposite. It was not limited to immunity ruling and the immunity because put on hold, so to speak, and the Court Ordered discovery to go ahead under a Six Month Program in which itself violates the immunity. Correct. And 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, but general discovery, which you have to tend and participate in or forego your rights on in a case. I mean, this is all the same case as the suit against the president in the official capacity. Its a single suit and the discovery may be limited to certain issues beau it was not limited to immunity. Correct. And seems to me when the court orders a program of discovery, it is denying absolute immunity which covers discovery. Against the president in one capacity, it comes against another capacity. This court, the Supreme Court have always recognize the difference. The recognition of different capacities doesnt answer the question as to whether the president even is his own capacity is being subjected to pretrial procedures. An ashcroft will propose not to do any discovery. So if in that case even if discovery is only against the of the parties still you have two different cases, one in the president s in the l capacity, what in his individual capacity. In this individual classy lawsuit had been dismissed or never brought, you still wouldve had to respond to discovery in the official capacity. Im not sure why it matters that the immunity issue hasnt been addressed if you are only concerned about that discovery. Thats not necessarily correct. The president s naming in a default capacity requires hiring additional counsel and preparation, thirdparty discovery in this case went through a through a number of corporate coordinations. We are a party to this action, all right community or entitled to the determination of immunity before were subjected to pretrial proceedings. In discovery even against of the parties, against same party into a capacity it still pretrial procedures. I dont think theres any room when you read it but to raise a question that we talked about a lot in the previous case, what is it that you want tried . In this case the court clearly has jurisdiction and has to i know what you think about that. What do you want the order to be . The court is obligated to address article iii standing in the first instance to make that clear. You have to at least at a a minimum yet to reach an understanding of you want the case to be dismissed, dont you . That is correct. If we have no jurisdiction you will get the relief you want. I guess that depends. In this case we want to be speeded you want rationale but the results will be the same. The result may not be the same to debate what the basis f the dismissal is. It may have additional facts, may have benefits to the president determination on immunity. No one forced the plaintiffs to add them to the list. We asserted are timely defense to a point we are not placed in the untenable position which would be on the effective canal of immunity. Council, the order decision if we determine we had jurisdiction, you should just we must first go to article iii. May we not go to absolute immunity, or is that necessarily have to come to article iii question . Is course decision in williams makes it clear that article iii jurisdiction is the threshold. The court always has to satisfy itself. Our reading of this course decision makes it clear you do have to satisfy yourself of article iii jurisdiction first. The court could proceed to the image case although we believe the merits question are sufficiently intertwined with it. Obviously theres been a lot of talk that the effect of rule 41 dismissal before being satisfied. I think this course decision including the decision in Dominion Energy support our view and reading of the case the once that is a court was the best at your station by tom notice of appeal, District Court was divested of any further ability including to object the dismissal of the action. As of now pointed out it would create all sorts of opportunity for mischief and would be inconsistent with federal rules of appellate procedure to permit a party who is unhappy with the way in which the appeal is proceeding to unilaterally go back to District Court, file a notice of dismissal and dispose of the peel at that time. I would like you to address the concern i have. It does seem as though its an odd posture because no one is actually advancing this claim at this point, so why isnt it a bit advisory for us to i dont think its great they are not satisfied accepting dismissal without prejudice. If the proposed dismissed the case with prejudice we would have a much harder argument but we would at least have certainty on behalf of the president that he will not be subject. We may have more certainty from decisions of this court and we wont be subject by other entities who have power under the threestep advanced with respect to stand in a in a numf it goes further than that in the argument for the panel, if i recall correctly, the Opposing Side indicated they did want it without prejudice i did not want to give up the right to bring suit again, and they were reserving that right. There are procedures under federal rules that effect would dismissal on appeal. They do not allow for the unilateral dismissal by the appellee any instance and, of course, we have not been approached at all with respect to that. I think its pretty clear and youre right the argument confirms the president s concerns he can be subject to further action and dismissing from the case for the time being allowed all the discovery to develop and bring him back in at a later date is just as troublesome as the discovery process the Supreme Court recognized. I do think standing question should be decided this week on the same grounds. I do think theres no standing with respect to claims arising against the federal cover. It doesnt rise to the level of concrete material heart. I also think immunity is a sufficient basis upon which to dismiss us, as is made clear in the other one but it rises only from his official status as president and only violate the emolument clause as president and, therefore, immunity would be appropriate. Thank you, counsel. Ms. Tulin. May it please the court, on behalf of the district of columbia and maryland. We think this Court Lacks Jurisdiction over the president s appeal for two independent reasons and that is what i intend to focus my attention this morning but i would be happy to answer any other questions the court may have. First, the District Court did not effectively deny the president s immunity claim. In fact, as members of this court have recognized, the District Court was very clear that it intended to rule on the motion, and i would like to read from it. Before jurisdiction can be invoked under the doctrine District Court must issue a court fully consummate decision that constitutes constitute a m and final resolution of the issue. In other words, the courts ruling must be the final word on the subject address. For that reason alone this Court Lacks Jurisdiction under the collateral order doctrine. Second, the district of columbia and maryland filed selfexecuting rule 41 a1 notice the voluntary dismissal. As this court and of the courts have recognized, the filing of such a notice operates as a matter of unconditional rights running to the plaintiff, and may not be extinguished or circumscribed by an adversary or the court. So if you have not filed your rule 41 notice until right now, filed it during the course of oral argument, with that moot our case . I believe it would, and that is the balance that struck in the federal and thats what this Court Decision in vote discussed, is that even when there has been an investment of resources either defendant and by the court, rule 41 strikes the balance, its a clear right line rule. The motion for Summary Judgment or and and chose not been filed, then a rule 41 notice is an absolute so under your view, for instance, you could wait until after oral argument, file your rule 41, terminate the case. You could even wait until after the opinion is issued but before the mandate issues, and still file . I think that is the logic of our position. Thats not what happened here but also theres a whole line of speedy but that is where your view of rule 41 takes you. It does take us there, but what i would say to that is theres a whole line of cases, cases that talk about what the appropriate thing to do to essentially to address the sort of concern about gamesmanship, is that if the party whose voluntarily moot the case cant get the benefit of a lower Court Decision. So the equitable remedy exists to address any sort of benefit that they would get from that, and here there is no speedy 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 certain it was going to lose. So the party dismissing 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 arguments to be unsympathetic to the position. So you just snatch the case at the 11th hour, the benefit of the District Court decision is, its immaterial to you because you were you are not going to get it. You lose the benefit. Youre going to lose the benefit at the reversal of the appellate level. How is that any kind of safeguard against the sort of gamesmanship with respect to rule 41 that you seem to be advancing . What this court said is, at the District Court level there were concerns that the party had come in, there was a motion for preliminary injunction. There had been three days of hearings on the motion and the court was concerned that there was a broad, that the party seeking a preliminary injunction had misrepresented things to the court, and what the court in that case it 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, our task is to apply the text not improve upon it. Although rule 41 cases contemplate the possibility all the a litigant may use a rule 41 notice of voluntary dismissal in a way that leaves of the court and the other side feeling unsatisfied, but they nevertheless, described as an absolute unconditional self executing right. Did any of those cases deal with the dismissal trial based on dismissal on appeal . None of those cases are on all fours on the procedural it makes sense i guess whether District Court has retained jurisdiction to allow for that kind of liberal volunteering dismissal of the cases now before us, and so why should we defer to a District Court dismissal when the case is properly before the Appellate Court . For two reasons. The first is that the whole idea, its not properly before this court speedy it is once. Once a notice of appeal is filed, once the news of the appeal is filed, jurisdiction in a court of appeals. Anything can happen in the District Court is an act in a of the appeal. An aide of the appeal. Undermining the appeal is a different thing. The District Court once the notion of appeal is filed can activate otherwise jurisdiction is in the court of appeals. Thats the law as i understand it. So the speedy we had one of these things last year that was in, i case called dominion and had one of the issues similar to yours but the court, the District Court had ordered a stay, and we skirted the issue because they tried to file the rule 41 thing after this day was imposed. We said we are barred by the state. We did have to deal with the thing your percentage. Seems to be were stretching things. I dont have any idea why were getting into this. The only question here is whether theres collateral order appeal can go forward, where theres never been a ruling. And isnt there an issue there on whether, if we have a controlling question of law that doesnt require Factual Development, we have an exception to the prohibition. Youre not suggesting there needs to be factual develop into. Its just a fair question of law, isnt it . So i believe the immunity question is a question of law. If im right, the way that opinion reads, we dont need o 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 catch you. I dont need to cut you off. I understand your position that nonorder is effective enough, but we have to dress the first whether the discovery here in effect creates that. I understand that. But that issue wasnt presented so thats a separate decision for us to make him wouldnt you agree with that . I think that its a separate the question of whether there was an order below is a separate question. But i think this goes back to the question because it is true that the general rule under greg is that the filing of a notice of appeal divests the District Court of jurisdiction to act. I dont want to labor the point about rule 41 but there are two important caveats that, the first is that griggs itself makes it clear the notice of appeal has to be effective. And if the notice of appeal is defective, then it is treated as a nullity. It is as if it doesnt exist. If its filed from a frivolous order thats not appealable, then its not effective. Thats right. If the defendant in a criminal case files a notice of appeal on friday to try to keep from getting out of the trial on monday, we have those things come up. The district District Court hao Pay Attention to. Dont want to. So a frivolous notice of appeal, but as a general proposition the notice of appeal puts the jurisdiction in a court of appeals, period. I would disagree respectfully with the period because it is equally well established that there are exceptions to that. Its not just the jurisdiction the District Court can act in aid of the appeal. Under the federal rules of appellate procedure it can resolve motions. It can appeal, address and first instance a motion for stay pending appeal. Can correct clerical errors. They can address matters of you have no case i think the answer to the question before was a notice of appeal in the court of appeals what it has been divested by rule 41. I respectfully disagree with that and i so what is it . Visa cases cited in a motion to dismiss the appeal, pages eight and nine, young versus draper from this court, an unpublished opinion from 2017. The plaintiff filed a rule 41 notice while an interlocutory appeal was pending in the Court Dismissed the case as moot. Thats nonpresident ial so it doesnt bind us to what else . I have a case from the fifth circuit in 1993, macfarlane versus collins. All of these are side in our brief, where he just petitioner dismissed his own havey is petition in the District Court during the appeal. Theres also a case, recent case from the ninth circuit. It was this week actually where the defendant, they 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 the same cases from the ninth circuit and all of the cases cited in our brief, they said the District Court does it have to exercise jurisdiction in order for a rule 41 a1 a1 notice to be effective on the time that it is felt. The question of whether this is a jurisdictional question based on rule 41 41 of whethers a factual question, this court is no stranger to dismissing cases on the grounds they are moot. We did in the case, criminal case which the defendant had gone to trial and appeal against it. They went on file. Head in the direction, and then the president took an action on clemency and nobody asked for mootness. Do you know what happened . The court decided thats an executive thing. This is moot and just got rid of it. That didnt anything do with jurisdiction. We had jurisdiction but jurisdiction was here to say it is moot because its over. Here, for all the argument but whether this is moot or not, theres not a lot of cases this applies to. It doesnt even come up unless the defendant has answer or Summary Judgment. Its a very narrow narrow class of cases in which give an issue of this type that arises. I agree with you and is even network because it has to be a case where the defendant will not take yes for an answer and walk away with let me ask you, do you agree with the position that the case against the president in his individual capacity is moot . Is at your position . Our position is that rule 41 notice speech i asked you whether you take position whether this appeal is moot. So we believe it is moot speedy yes or no, do you have an answer . Yes. It is moot . We believe it is moot. And yet you refuse to dismissed without prejudice. Do you still reserve the right to refile the suit . So we are not yes. We are not how can it be moot then . Our position that it is moot by virtue of the rule 41 a1 a1. Thats not mootness. Thats a procedural argument. Mootness goes to whether it is no longer a case of controversy. And if youre reserving the right to file again, we have this whole doctrine in the area of injunctions and otherwise. Its hardly moot when you want to does dismiss now but may bed later. How can we say that is moot . The position with 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 a position as if the case had never been filed. That is our position with respect to mootness. Can i follow up . Lets assume we do have jurisdiction on this based on the discovery and in the case, lets assume your rule 41 notice is that something that deprives our jurisdiction. Do you have any argument that we dont have to address standing first, assuming we have jurisdiction, in response to what your colleagues argued earlier. Was yes, your honor. We disagree strongly with the proposition that it requires this court to address standing first. The first principle behind that is that the first thing that this court does is look at what is its basis for Appellate Jurisdiction. The only basis for Appellate Jurisdiction is the collateral order doctor. I have two points first speed is i think youre taking away the assumption i ask you to make but maybe or not. Go ahead. Im not because, even assuming that the notice of appeal was effective, still the basis for jurisdiction is the collateral order doctrine. Thats the only basis. What this court said, so the Supreme Court has addressed this in several ways. The court said the courts have widely went in choosing among threshold ground for disposing of the case. Theres no reason, and this court in immunity which is usually raised under rule 12 the sixth and is an affirmative defense which could be waived. Does that get precedence over a jurisdictional issue which goes to the power of the court to act. We couldnt assume our power to act if there was a question of that power. We had to resolve at first, and so it seems to me this is not threshold jurisdictional issues where we could pick even personal jurisdiction which could be waived, maybe falling under the rule to talk about. This is a 12 b 6 affirmative defense and youre suggesting we should decide that i had of the power of the court. And i wonder whether Steel Company really doesnt tell us where to decide our own power before you go ahead and exercise that power. What the Supreme Court made clear and a case that said it was okay for the court to decide for him nine convenience before addressing jurisdictional issues what kind of jurisdictional issues . Personal jurisdiction . Theres a lot of difference, you know. Article iii jurisdictional issues. I understand but article iii under personal jurisdiction is quite a different concept from subject matter jurisdiction. Subject matter jurisdiction, we dont even have the power to act and that was with Justice Scalia was tied up without that that we should Pay Attention to. With other jurisdictional questions like personal jurisdiction, is also jurisdictional but it can be waived. It doesnt deprive the court of the ability to act and so i think thats the important distinction. What the court said is that the principle underlying Steel Company is jurisdiction is vital only if the court proposes to issue a judgment on the merits and so what cases after Steel Company, say is that you have, if there are threshold nonmerits that are properly presented and what argument is that here that is the only thing that is properly presented under so you are saying is a merits appeal of this lack of diversity appeal in a civil suit. If theres a lack of diversity, i would believe theres a lack of diversity we can still go to determine the merits . Under the merit hypothetical. So not based on the collateral order doctrine speedy as your hypothetical theres an appeal a the merits and lack of diversity. We can ignore the diversity and assume that diversity is there an act on the merits . We dont have the power to do that. What the court said is thats when the jurisdiction that is being discussed in steel co. Matters. When the court purports to issue a ruling on the merits. So the question is not whether the court can skip to the merits and then address other jurisdictional issues. The question is, when the court has before it a number of threshold nonmerit questions, what is the proper order of operations for statute of limitation, should we decide the statute of limitations when we dont have diversity . So i think that if it, when it is a threshold i want you to address by hypothetical. We will get further along. My hypothetical, shall we address the statute of limitations issue when we dont have diversity . So i think i would also say that that is a threshold nonmerit question, and then the court has so we decide statute of limitations . If it is a way to deny the party an audience to the case on the merits, then the court can decide in which order to dispose of the issue. Where did we get the power to rule on limitations . We dont even have the power to do that. Congress is us a limited power in article iii and one of them is diversity. If we dont have diversity we do have the power to act or to rule that limitations is or is not invoked. Its not a formula that you read a little quote from a case and say we can decide anything we want, if its convenient or if its not on the merits. We have to understand the motion if the motion goes to our power to act under article iii we have to resolve it before we move forward. There are more levels of disposal, jurisdictions, and then we have quite a bit of leeway to make the decision and italy thats what the Supreme Court was saying. So respectfully, your honor, i believe both speak to this question and put an important limitation on the steel co. Holding i would also point this court to multiple cases that this court has decided after steel co. In which it has expressly declined to address standing or other article iii subject matter jurisdiction issues on speedy so you basically are arguing i guess that we should decide the immunity issue and not the standing issue. Is that your position . That is our position. If this court speedy im sorry, i didnt understand that we should position i thought you thought there was no final order here and there was no basis for in function invocation of the clatter order pixel if you have no final order and no lateral order, we have no appealable order. Correct . So all of this discussion is, if we do, if their the summit is jurisdiction here, then look at these are interesting issues and discuss them. If we should conclude there is not an appealable order here, we dismiss. Thats correct. Thats what i thought you were at the beginning. Judge niemeyer catch talk but you need decide standing and immunity and all of the stuff. If we cant get there, unless there is an appealable order. I completely agree. What are you spending all your time talking about speedy thats what order, retirement all this other stuff about aiding jurisdiction on appeal with rule 41 and all these other issues. The question here is whether you have a notice, theres a notice of appeal that was effective and whether theres collateral order jurisdiction. If the edges no, it would end, stop. No jurisdiction, dismissal is what they call it. I agree. I took the premise of the question to be that he disagreed with me about the motion to dismiss the appeal because he wrote a Panel Opinion saying that. You have to be clear in your answer, it should only go to the question if we do have jurisdiction, then they are all fair game and are interesting. But if we dont have any jurisdiction, thats all she wrote, right . Thats absolutely right and that is why started. The first thing the court has to decide is whether it has jurisdiction. Can ask you a question about . Lets go back to that basic. I think these were either hypotheticals and we get beyond that, but the main issue, one of the main issues is whether there was an effective denial. You said jenkins holds we dont have to have order if we effectively deny it. My question to you is this. When the District Court entered, was requested several times to address immunity from proceedings, and participating in proceedings including discovery, pretrial proceedings including discovery. When it gets a court an order scheduling discovery in which the president is going to participate if hes going to be, 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. Know, ill make it i want to elaborate all the details but the real question focuses on the discovery order. The program for discovery affectively denies the president immunity because the order said you have to go in with discovery, despite the president s assertion of unity which covers discovery. I dont agree that the discovery order in this case constituted an effective denial and id be happy to elaborate on that. But i would also like you agreed earlier you argued theres no order to be appealed from, and jenkins recognizes you dont have to have an explicit order to deny. You can effectively tonight. My question, isnt that decembeg discovery program, sixmonth discovery program, without addressing the immunity, isnt that an effective denial of immunity. That was my question. The reason i want to start with jenkins is a dont a great jenkins stands for the proposition you can have no order. In jenkins the court denied motion to dismiss in which qualified immunity had been raised. The District Court ruled on that motion, denied the motion and said i will address the immunity claim at Summary Judgment. Thats the same thing that happened here. The District Court said three times im going to address a lady. I will address a little. It was raised. It was raised in april, and april the court said we are not going to hear it, we will not even allow you to be present on the hearing on june 11. And on june 11 the court says i will address the them into later. On july 25 it says ill do a separate opinion. Then on august 15, the president said would you please will of the community at your earliest convenience . The court didnt do anything and then on december 3 present said again will you wrote on my community . And on that date instead of recognizing immunity and promised to reach it, the district judge issued an order for discovery which effectively denies immunity because discovery is protected by immunity. The discovery order was only open against the president and his official capacity he had to attend the depositions, regardless. There are number of things i would counsel my client to do. Sit in the living room and watch Football Games and all the litigation goes on. Reserve the objection and decide whether not to attend a deposition, but you could also seek mandamus. Theres a question that the defendant could of done that here. And if he had the result would be that this court, if it believes that the mandamus standard but 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 collateral order doctrine, immunity isnt, you know, discovery of, takes place. Theres been no ruling of the immunity until lengthy discovery takes place. And the gist of it all is that the president is tied up in court with litigation that just, the purpose of it, the purpose is just have a litigation go on and on and on, and avoid any kind of resolution. That seems to me, and that whn what the implications of having the litigation just grind on without resolution, what the implications of that are separation of powers. And for the potential, not just of this suit but of many, many other suits is simply tied down the presidency and executive branch of government to a greater extent that it has been impeded before. Because thats the end of it, just keep litigating, isnt it . I see my time has expired. But you can add to the question, yes or no, the first part. Go ahead. I couldnt guess what your answer would be. There are a number of questions take into that question. Certainly arent it is not to type the present litigation. In fact, we tried to dismiss the individual capacity and from this lawsuit come and were also not taking the position that if discovery had gone forward and we noticed the deposition of the present that he would have no effective relief either from an effective denial or through mandamus, but here with the District Court evidenced an intent to rule was working to the issues in this case and theres 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 even if this court does have jurisdiction, that the appropriate thing to do is to send it back to that just a court. But the president is denied a right to appeal under the collateral order doctrine, are not the longrange implications of that, that the president is going to be tied up in litigation without a court of appeals ever being able to review it . And what it does is, once again, have 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 that, 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 wrinkle and that wrinkle or the collateral order doctrine, but the longrange effect of this is whether we are sending this whole business of debilitating litigation that offends the most basic separation of power principles, if we can just keep the executive dangling. So we dont believe that that is this case and we certainly dont believe that the court needs to go that far. In this case in deciding whether to was an effective denial, even if there was an effective denial, whether this court wil then reach out and decide and immunity question in a case that we said we dont intend to litigate. And so if you said we dont intend to litigate it, we dont want to litigate it can we will dismiss it with prejudice, ill bet you are calling on other side of the aisle will be readily prepared to dismiss the appeal. But you have said and even repeated today that you are reserving the right to file again. Is that what this is all about . Is there some gamesmanship going on . I dont believe theres gamesmanship. All that is relevant if you dont have jurisdiction. Thats all youre to say is it ought to be dismissed for lack of jurisdiction. Any of these other issues are for the District Court. To the point of jurisdiction and the comets that gamesmanship, thats what we face all the time with cases that come up. You may have another motive, i dont know which motive is. We have a legal issue. We are not the news channels. We are not the political argue about these cases where a court of law. We need to decide legal issue in this case and forget about the question of whats going to happen . Is a world going to turn upside down if we do this, with the present have to work too hard and give up theres a clear legal issue before us, and if it does go there, they can address the concerns but this is not the time to do it. We dont do it in other cases. Why would we do at your . I agree, and for the reasons that i explain, we dont believe that this court has Appellate Jurisdiction and that the appeal should be dismissed. Thank you. Thank you, counsel. This court an question we has Appellate Jurisdiction of this case. The argument serving press. The present has asked for at the very beginning of this case plaintiffs are and willing to give him anything close to the relief he is seeking. On the effective denial point i want to make a couple things ore clear. The notice of appeal include a notice of appeal of order opening discovery. We havent order to be filed if its not just simply a notice of appeal on the docket id tied to any the District Court. I think the court has to grapple with the question that it requires something as explicit as what happened in jenkins and invest that much more explicit than what happened here. I will later is not much different than im going to issue my decision at a later point in time. And take over discovery, official capacity case as well. Unser . You want us to take over discovery as well to manage that . No. I think that subjecting the president speedy we are talking about the law in terms of discovery. The District Courts manage discovery, dont they . For think the president to be subject to pretrial procedures including discovery is an effective denial of his right of immunity. But you said in an official capacity you also extended it to discovery. Thats what you were trying to say, its more than just the individual. We included also the question of stopping discovery, even in the official capacity. Didnt you just say that . Im sorry maybe speeders didnt you just say that . The opening of discovery, against any party in any way, shape, or form constitute a denial of but you say you also included the aspect of discovery in the official capacity. Youre asking us for a rolling there as well, to stop that . Just now when i took the podium or at some point in the case on your rebuttal. Did you say that . Maybe i i misunderstood but i thought that im not sure what i said so at me rephrase. Once discovery was open against any party in any capacity, the president as a party in this case was being subjected to pretrial procedures that constitutes an effective denial of unity and with the right to appeal from that order even if the District Court prior statements were some about how long he would take on images. Looking at these various doctrines, and to listen to the discussion of mandamus, immunity, the collateral order doctrine. Its almost as if we think this case is really no different from your ordinary slip and fall case, that the character of the litigation is demonstrably different. From say, we face is all the time. Thats the response, you face is all the time. No, we dont face it all the time. I think everyone would admit it is a case with dimensions that come before us that simply do not come before us on a normal tuesday morning, and you have to take into consideration those separation of powers, arguments, which are fundamental, go to the place of the judiciary, the presidency, and you cant just look at it from the lands, through the lens of a suit, exercise, a slip and fall case for some of the case that judicial business. This case is different. I certainly agree that this case presents a lot of unprecedented and highly important issues, incorporates separation of our concerns and those weigh in favor of a lot of the arguments that it can advanced so far. This is not a case for the parties have agreed adages one address a couple points glycolic funny of the site made during her argument. A number of the case she said it were cases where the appellant filed the rule 41 a1 dismissal. Theres no relief that can be granted if the court of appeals is grappling, is consistent with allowing appellants to dismiss their cases. In a couple other cases that they cite the appellant did not object to the dismissal of the case under rule 41a so theres no reason speeders and in both instances those were filed in this accord . They were filed in the District Court. They had jurisdiction to handle it if the pilot doesnt or if the parties agree . No, because the appellant can always and then the appeal. Rule 41, its not 42. Its not a matter for this court. If the transfer to rescission pinos appealed the curse i cant go back there, then basically youre saying you cant. Theres some jurisdiction to go back and handle it if the Appellate Court agrees . No Company Think this, in the fifth Circuit Court what the courts are doing is reading a motion filed at the District Court level. They are treating the motion filed at the District Court as if it was a motion to dismiss. They didnt do any of the case here which we sent back to the parties to stipulate to the 41 dismissal, in the District Court. That was was in this court, and again if they can go back and stipulate in District Court, there has to be some jurisdiction back there. And some of those cases the parties may have essentially agreed that the appeal was moot. In that case may be the case should be remanded and the dismissal take effect. There is no agreement hear the case is moot. With respect to the argument regarding threshold issues i want to make point she raised. Those cases to make clear the court can choose among certain threshold issues especially issues that go to lower courts. For example, arguments about whether the court has the power to recognize a cause of action in some cases may constitute issues, other threshold statutory issues. But what steel co. And what those cases still simply say is outside of jurisdiction or other similar threshold issues help me understand. Why would we think about the rule as being very similar to absolute immunity . To the extent you understand where cotton comes from, seem to have some idea to outfit the need to. And, of course, the courts and we can reach that at the special issue why would we think the absolute immunity in a very similar light . To be fair it was a fair amount of disk as to what the rule was. Im not sure either but the point being is it seems to have a Similar Foundation why wouldnt that rule which a court said, under steel co. We can reset at the threshold matter. Why wouldnt the fall and the same category of absolute immunity which seem to have a Similar Foundation . The concern that judge got at is immunity is based on the merits and rolling is considered a merit ruling. We cite a couple of cases for that and are opposition brief. I think that was the subject of some dispute. Its a hard issue and im not trying to suggest there again, the standard cases are easy. The absolute immunity case, we recognize their somewhat of a precedent on president ial committee. There are two cases. This case we think is closer to nixon than it is to jones, which im happy to expound upon. But the court clearly has Appellate Jurisdiction and want to make one of the point about the case being tendered even if this case would go back, theres another lurking issue that will bring all these issues back to the forefront which is whether rule 41a1 a1 dismissal was effective because it did not dismiss the action as he helped italy dismissed some claims against the president in his official capacity. The rule talks about action and later in the rule talks about a claim and an action. And so your point i think is well taken, whether the rule is applicable only when theyre willing to dismiss the action. Correct. In this case i think there are other rules in the rules of civil procedure that address adding or dropping claims. The one thing you know from a case like mitchell versus forsyth is the extension of discovery, extension of litigating proceedings is absolutely at odds with the whole purposes of immunity, the whole purposes of immunity are to get a case resolved at a relatively early stage, rather than a relatively later stage. Otherwise, the value of the immunity is entirely lost. And to the degree that the District Court proceedings on the subject that we manned company on and on and on, the value of the immunity drops down and down and down. You have to look at this from the purposes of immunity, and the particular cogency of immunity when youre 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 a defendant. They are magnified. And thats what were talking about here. Let me just respond briefly. Yes, i think thats right speed if you disagree with that . No. Not disagreeing the point of importance of this. This is not the only context in which the Court Considers also immunity and theres a real problem because their decision you need an explicit order addressing the time which immunity will be made. That is going to effectively deny all the benefits of thoughts thats what immunity and run afoul of numerous precedents requiring courts to address immunity claims, especially absolute te new declaims at the early stage. If there are no for the question, thank you very much. Thank you, counsel. We asked the clerk to adjourn the court. This Honorable Court stands adjourned. Weeknights this week were featuring booktv programs on cspan2. Watch tonight meeting at the eastern on cspan2 and enjoy booktv this week and every weekend on cspan2. Are cspan campaign 2020 busking is traveling across the country asking voters, what issue should president ial candidates address . I would want to know what a future present or in other president ial candidates will do for this date and my community regarding jobs, jobs market and economy. The United States must have a strong economy. We have a huge nation. We provide a lot. I really do need, i do hope the next president no matter who they are, man, woman, democrat, republican, to defend our jobs and to help out economy, not hurt it. Some issues i like the president ial candidates to tackle would be the student debt crisis. Reproductive rights and homelessness. I feel like its vital for women to choose whether want to do with her body, whether its on it is a. The question i have is what are you guys going to do about the palestinianisraeli crisis . Because it is unfair to completely ignore the humanitarian situation and injustice thats happening in palestine with just the whole issue in gaza and whats been happening in recent days. You cant just ignore that powell and stealing people what the what to do. 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