In re Trump

• Citation: 958 F.3d 274
• Decision Date: 14 May 2020
• Docket Number: No. 18-2486,18-2486
• Parties: IN RE: Donald J. TRUMP, President of the United States of America, in his official capacity and in his individual capacity, Petitioner. Professor Clark D. Cunningham; Professor Jesse Egbert, Amici Curiae, Scholar Seth Barrett Tillman; Judicial Education Project, Amici Supporting Petitioner, Former National Security Officials; Commonwealth of Virginia; the Niskanen Center ; Republican Women for Progress; Cheri Jacobus; Tom Coleman; Emil H. Frankel; Joel Searby; Administrative Law, Constitutional Law, and Federal Courts Scholars; Certain Legal Historians, Amici Supporting Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

958 F.3d 274

IN RE: Donald J. TRUMP, President of the United States of America, in his official capacity and in his individual capacity, Petitioner.

Professor Clark D. Cunningham; Professor Jesse Egbert, Amici Curiae,

Scholar Seth Barrett Tillman; Judicial Education Project, Amici Supporting Petitioner,

Former National Security Officials; Commonwealth of Virginia; the Niskanen Center ; Republican Women for Progress; Cheri Jacobus; Tom Coleman; Emil H. Frankel; Joel Searby; Administrative Law, Constitutional Law, and Federal Courts Scholars; Certain Legal Historians, Amici Supporting Respondents.

No. 18-2486

United States Court of Appeals, Fourth Circuit.

Argued: December 12, 2019

Decided: May 14, 2020

ON REHEARING EN BANC

DIANA GRIBBON MOTZ, Circuit Judge:

President Donald J. Trump, in his official capacity, petitions this court for a writ of mandamus directing the district court to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) or, in the alternative, ordering the district court to dismiss the complaint against him. The President maintains that the district court committed multiple errors that we should correct; however, this case is not on appeal. We recognize that the President is no ordinary petitioner, and we accord him great deference as the head of the Executive branch. But Congress and the Supreme Court have severely limited our ability to grant the extraordinary relief the President seeks. Because the President has not established a right to a writ of mandamus, we deny his petition.

I.

The District of Columbia and the State of Maryland ("Respondents") filed this action in the District of Maryland against the President in his official capacity.¹ They allege that the President is violating the Foreign and Domestic Emoluments Clauses of the U.S. Constitution by accepting prohibited "emoluments" from foreign and domestic governments. The Foreign Emoluments Clause provides:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

U.S. Const. art. I, § 9, cl. 8. The Domestic Emoluments Clause provides:

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Id. art. II, § 1, cl. 7.

The President moved to dismiss the complaint. After considering the parties’ extensive oral arguments and lengthy briefs, the district court issued two thorough opinions. See District of Columbia v. Trump , 315 F. Supp. 3d 875 (D. Md. 2018) ; District of Columbia v. Trump , 291 F. Supp. 3d 725 (D. Md. 2018). The court granted the President’s motion to dismiss with respect to the operations of the Trump Organization outside the District of Columbia, concluding that Respondents lacked standing to pursue those claims. Trump , 291 F. Supp. 3d at 732. This narrowed the case to the President’s alleged violations relating to the Trump International Hotel in Washington, D.C. The district court denied the motion with respect to that hotel.

The President moved for certification to take an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), seeking appellate review of four questions: (1) the correct interpretation of the term "emolument"; (2) whether Respondents had an equitable cause of action to bring the suit; (3) whether Respondents had Article III standing; and (4) whether any court has the ability to issue equitable relief against the President in these circumstances. The district court declined to certify an interlocutory appeal, explaining its decision in another written opinion. There, the court recognized the proper standard for certification under § 1292(b) and elaborated why, in its opinion, resolution of the questions presented by the President did not satisfy the statutory prerequisites. See District of Columbia v. Trump , 344 F. Supp. 3d 828, 844 (D. Md. 2018).

In response, the President petitioned this court for a writ of mandamus, invoking the All Writs Act, 28 U.S.C. § 1651(a), and Federal Rule of Appellate Procedure 21. He asks us either to direct the district court to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) or to order the district court to dismiss the complaint with prejudice. A panel of this court granted the President’s petition for a writ of mandamus and, purportedly exercising jurisdiction pursuant to § 1292(b), found Respondents lacked standing and so "reverse[d] the district court’s orders" and "remand[ed] with instructions to dismiss the complaint with prejudice." In re Trump , 928 F.3d 360, 364 (4th. Cir. 2019). We subsequently agreed to hear the case en banc, vacating the panel opinion. In re Trump , 780 F. App'x 36 (4th Cir. 2019).

II.

A writ of mandamus is not a means to prevent "hardship occasioned by appeal being delayed until after final judgment." Bankers Life & Cas. Co. v. Holland , 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953) (internal quotation marks omitted). Rather, it is a "drastic" remedy that is appropriate "only in extraordinary situations," such as where a court has exceeded the "lawful exercise of its prescribed jurisdiction" or refused "to exercise its authority when it is its duty to do so." Kerr v. U.S. Dist. Court , 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (internal quotation marks omitted). As the Supreme Court has explained, issuance of the writ without adherence to these strictures would erode the final judgment rule, a congressional command since the Judiciary Act of 1789. Id. at 403, 96 S.Ct. 2119 ; accord Allied Chem. Corp. v. Daiflon, Inc. , 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980).

Accordingly, a petitioner seeking mandamus relief bears the burden of demonstrating that he has satisfied three requirements. Cheney v. U.S. Dist. Court , 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). First, the petitioner must establish that there are no other adequate means of obtaining the relief sought. This criterion is "designed to ensure that the writ will not be used as a substitute for the regular appeals process." Id. at 380–81, 124 S.Ct. 2576. If there is an available "alternative, less extreme, path to [relief,] issuance of the writ is inappropriate." Kerr , 426 U.S. at 396, 96 S.Ct. 2119.

Second, the petitioner must prove that his "right to issuance of the writ is clear and indisputable." Cheney , 542 U.S. at 381, 124 S.Ct. 2576 (internal quotation marks omitted). This criterion similarly ensures that the writ of mandamus is not "made to serve the purpose of an ordinary suit. It will issue only where the duty to be performed is ministerial and the obligation to act peremptory and plainly defined. The law must not only authorize the demanded action but require it; the duty must be clear and indisputable." United States ex rel. McLennan v. Wilbur , 283 U.S. 414, 420, 51 S.Ct. 502, 75 L.Ed. 1148 (1931).

Third, even if the petitioner satisfies the first two criteria, "the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances." Cheney , 542 U.S. at 381, 124 S.Ct. 2576. Thus, the decision to issue a writ of mandamus "is in large part a matter of discretion with the court to which the petition is addressed." Kerr , 426 U.S. at 403, 96 S.Ct. 2119.

Given the demanding criteria a petitioner must meet to obtain a writ of mandamus, appellate courts rarely grant mandamus relief, and even more rarely find it appropriate to issue a writ of mandamus to correct acts within the discretion of the district court. See, e.g. , In re Ralston Purina Co ., 726 F.2d 1002, 1005 (4th Cir. 1984) ("[W]hile writs of mandamus to review discretionary decisions of district judges are not proscribed, they should ‘hardly ever’ issue." (quoting Allied Chem ., 449 U.S. at 36, 101 S.Ct. 188 )).

Of course, when the petitioner is the President, "the Court of Appeals must also ask, as part of this [mandamus] inquiry, whether the District Court’s actions constituted an unwarranted impairment of another branch in the performance of its constitutional duties." Cheney , 542 U.S. at 390, 124 S.Ct. 2576. The special solicitude for a President seeking a writ of mandamus "give[s] recognition to the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties." Id. at 382, 124 S.Ct. 2576.

The President advances two courses that he maintains provide him entitlement to the extraordinary relief he seeks. We address each in turn and then consider the contention that, in any event, Cheney requires us to grant such relief.

III.

First and principally, the President contends that this court should issue a writ of mandamus ordering the district court to certify its orders for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). That statute provides a vehicle for appeal of an interlocutory order where the district court and the court of appeals have agreed that such an appeal is appropriate.

Section 1292(b) mandates that a litigant who wishes to take such an interlocutory appeal first seek certification from the district court, and, only after the district court agrees, obtain permission from the court of appeals:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have

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