Transcripts For CSPAN2 Fourth Circuit Emoluments Oral Arguments 20240713

Columbia seek to an implied cause of action to enforce emolument clause against the president of the United States. The Municipal Court committed errors in dismissing the suit could i ask you to speak up just a little bit and bring the microphone closer if you can. And the plaintiffs are fundamentally mistaken in asserting that this court is powerless to correct any of those errors at this time. Now, we have identified two different paths through which this court can grant mandamus relieve. The Supreme Court in cheney made clear, its utmost when involving mandamus and the preds of the United States and in no case would a court be required to proceed against the president as it would against a private individual and moreover, the court said that the high respect due the office of the president must be considered throughout the entire proceeding. Now, what does that imply in this case . It implies the following. Their position is that even if the District Court erred in refusing to dismiss the suit. Indeed, even if it clearly and indisputably said theres error to dismiss the suit. Their position is that theyre powerless to do anything about it. That the president must go through Court Litigation and discovery into his personal finances, the official acts of his administration and only at the end of all of that can he take appeal from a final judgment which will promptly be dismissed. That. Counsel, can i ask you, i thought it was your burden to show you were clearly and indisputebly entitled to mandamus. I thought that was one of the requirement of mandamus relief. Is that correct. Thats correct, your honor. Its not saying that you havent met that, its saying you have to demonstrate to us that you have met that, right . Youre part right and part not right, your honor. Its true we have the burden. Clear and indisputable right. And their position is even if the District Court was clearly and indisputebly wrong. If every judge in the world would have agreed he should have dismissed the suit, their position is we still cannot get appellate relief. Youre skipping a step. You have to meet your burden first that the judge is asking you about. Im happy to do that. I just want to make clear that we have rnl i think that we have to talk about your burden because you would agree with me that mandamus is extraordinary relief. It is, your honor. And demonstrating that youre entitled to this extraordinary relief. Absolutely and what i wanted to say at the outset, we have two means of showing mandamus. Let me focus let me interject there. While youre doing that, why dont you distinguish, as you see it, this case from what the d. C. Circuit did in a similar setting, where they sent it back, as i understand it. Ments so, i dont actually ill answer both questions at the same time. Your honor, i dont think that theres a 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 had clearly abused its discretion in refusing to grant 1292b certification. Without deciding whether it could grant mandamus on that basis, it remanded and told the District Court why dont you reconsider. In all due respect, i dont think thats a material distinction between ordering court to say you clearly erred and telling a lower court, youve clearly erred, why dont you reconsider it. Any reasonable the Supreme Court thought there seems to be a big difference in granting mandamus relief and doing that and thats, i think, the question is well taken, and thats why im sorry to persist in this. Maybe you can explain why you meet the three requirements for mandamus relief. On the first prong, theyre related. Reason why i dont think theres a difference is because when you tell a District Court theyve cleared abused their discretion and why dont you reconsider, a reasonable District Court will follow the courts instruction and grant the certification. And a totally you need more than a clear abuse a clear abuse of discretion is the first prong. Clear and inevitable the first disputable right is different than abuse of discretion. , but not a clear abuse of discretion, if you look at cheney, i can read you the quote. Youre still skipping the first step. The first step is that you have to demonstrate, is a clear and indisputable right. So what is that clear and indisputable right . You must think you have one. And i hear one. And what was the, if you could answer along with that. What was the court legally required to do that was not done in this case . I think our simplest explanation to all three questions ive gotten we think its clearly and indisputable you cannot sue the president of the United States without expressing a suit by congress. We think thats clear and indisputable, but the Supreme Court that has thric e. On that. I think thats your gloss on what the courts held, but we know from current litigations that several courts have allowed suits against the president to proceed. How can it be clear and indisputable. If all courts are flouting this, its the question in franklin was whether the president was subject to the administrative procedures act. The administrative procedures act covered agencies and defined agencies as any authority of the government of the United States and what the Supreme Court said is that that language didnt expressly include the president , but nor did it expressly exclude the president and there for reasoned in night of situation of powers and unique constitutional role of the president. Can i go back . You said theres a clear legal error and is it your view that mandamus if the court thinks theres a clear error . Thats on direct when were reviewing factual findings and i dont think that anyone thinks we should grant mandamus on the grounds. If theres a i know the quote youre talking about, but its a paragraph how its traditionally used only to ensure that a District Court has not usurped for some gross abuse of authority, usurped the power that it doesnt have, gone outside its jurisdiction. I think saying clear error is not really the equivalent to what were talking about here. Your honor, im happy to accept any formulation. We think that they equally apply when you have a suit thats against a president of the United States. Thats cast categorically closed and this is in the Association Case that if the lawsuit is filed in federal District Court that should have been before a federal agency, thats the sort of clear usurpation to use your phrase and mandamus. As i understand your position, you have a clear and indisputable right in this case because the judiciary is seeking to assert over the presidency of the United States authority that has never been asserted or claimed before. That is absolutely right, your honor, and the point i was trying to make about sual. If its a clear usurpation of a jurisdiction on an agency merely exercising the president s executive power, then surely its a clear usu usurpationo. You cited and it left open a suit against the president for a ministerial and there are other cases, clinton versus new york and the d. C. Circuit case against president nixon. If you can state whether the relief solved is ministerial or discretionary, i appreciate your position on that. I have two points on that. First to directly answer this, i dont think its ministerial within the meaning of the cases. In fact the argument that its making the precise error that the Supreme Court in mississippi versus johnson rejected. In mississippi versus johnson, tried to say that the president , it was ministerial because the president could not of course act inconstitutionally. And certain reconstruction acts were unconstitutional and of course you have to comply with the constitution and its a ministerial duty and the court said, no, no, thats not what it means. The question is whether theres any discretion and if theres a reasonable dispute whether this act is unconstitutional, its not ministerial, its executive. And the question whether it would be constitutional to allow a suit against the president. Theres an antecedent step. At a minimum congress should have to expressly authorize such a suit and congress should have to say that the president can be sued for ministerial acts. Thats the point of the clear statement requirement thats in frankl franklin. Its the point of the statement in nixon versus fitzgerald and the canon. And why would the court construe implied cause and equity for the first time in this nations history this court avoids constitutional questions and that could follow from basic principles of equity. Theyre relying on the traditional commonlaw equity power to join federal officials, well, there are two things about that. They cant assert such a history with respect to the president. Its always been lower federal officials, and second, we know from cases like grupo mexicano, that the scope of traditional remedies has to be formed by history. The point of grupo mexicano, your that has to be done by congress because of separation of power. If that thats true whether the prejudgment creditors or postjudgment creditors could file suit, surely it applies whether you could extend a cause of action for lower cause for the president of the United Statesments were treating this as if its some ordinary runofthemill case and it is not that. The judiciary is asserting injunctive power over the president 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 knicnixo nixon, where the courts were aiding in the enforcement of 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 this is neither of those. Theres no direct the government is not acting directly against any individual and the government and youre not seeking were not confronted here with enforcement of a judicial subpoena in a criminal action. Whats being asked here is just wholly unprecedented, which is that we are to create a cause of action on our own under this emoluments clause. We have no history to guide us. We have no precedent 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 excellent summary of our arguments, judge wilkinson, all i can say in addition is in theres no question there. Let me ask you could he answer my question. I didnt hear a question, judge, im sorry. If you heard a question, please answer it. I think what i would say is if all of that is not enough to warren mandamus relief, im hard pressed to see how this court could say in sewell in a jurisdiction is not warrant mandamus review. All the litany that judge wilkinson explained blows out of the water the case whats the answer to the question. Youre giving i understand what he said, you said you agree with him. Whats the answer to the question . This is exactly the sort of usurpation. Theres no enforcement of action emoluments clause know do this and not allow an interlo interlockry appeal and this is not just the president s situation of power, it goes to the question of is he above the law . And the allegations here are essentially discovery thats sought from third parties, primarily businesses, its really not a prerogative of the executive branch thats being sought here. In order to tie that in, youve got to tie him in so ultimately you say whatever the president does puts him above the law and out of the reach of being able to deal with issues that may be squarely there. Let me ask the more fundamental question because you started your argument out to the effect that they say you cant even be here before you even Start Talking about mandamus, you have to look to determine, well, is mandamus available in the instance where a District Court has given a denial of certification . And its clear that i dont know of another case thats done it in this fashion. If you want to talk about something thats never happened before, the 10 circuits that dealt with, nobody said a District Court can be taken over by the Appellate Court. The Appellate Court in this instance cannot usurp power and to do it, congress spoke and it really comes down to a congressional word shell. But let me finish. In the instance of the court, the District Court saying denial of certification in that particular instance, theres really no precedent for whats happening here today. Thats not true, your honor. Let me say thing there is one circuit. You would have to agree though where the weight of authority is against you on that point. That word is precedent. [laughter] let me finish, my word is precedent. Theres no word for this. The weight of the authority goes entirely the other way. Let me say a couple of things about the weight of authority. First, as the judge motz recognized theres one circuit that did exactly as weve said, 11th circuit in a case. They directed the Circuit Court to certify and their only distinction of that case is the District Court there hadnt yet ruled on the certification motion. Thats a the 11th circuit didnt let the District Court exercise its discretion, it thought it was so obvious that it would be granted it didnt gi the District Court to screw up which is what the District Court here did. Point two, it is both the d. C. Circuit in the parallel suit and the 5th circuit in the mcclellen case have done essentially the functional equivalent. They said that the District Court clearly abused discretion and remanded for the District Court to reconsider. Now, on this, i have a hard time understanding how any honest reasonable District Court judge in the face of that sort of order would do anything other than what judge sullivan in d. C. Did, which is promptly turn around and certify. The only difference between that and this is a judge who could care less that a panel of this court said he clearly abused discretion. Promptly tun around and certify and sent back to the District Court to do it. Yes. That wasnt done here . Your honor, i think the panel was absolutely right that it is pointless to remand it to the District Court, to give the District Court how do we know that . Because all that can happen, the District Court can thumb its nose of this court. So what . Do you have any case where a court of appeals has used mandamus as the vehicle to order a District Court to dismiss a case . So in the 11th circuit case no, no, im using mandamus to grant relief, to grant the substantive relief by ordering a District Court to dismiss a case . This courts decision . Sewell. The Court Decision in sewell was the case should have been dismissed because it should have been in the jurisdiction. Right. But no, im saying that the District Court in this case made went through all the hoops. It did everything it needed to do in order to consider the issue of certification. The case was properly before the District Court. It wasnt a question that it should have been in another forum. Our point, it should be in no forum. In sewell, the point was that the District Court erred in dismissing and putting the case into an executive agency and this court mandamus, no, case should go to agency. Our point is the suit shouldnt go anywhere. Right, but 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 did. No, your honor, i agree, as a lot of the questions, there has to be a clear and indisputable legal violation. How does the District Court usurp its authority. You still havent told us that. Again, for the same reason in sewell if a District Court takes jurisdiction over a case that belongs in front of an Administrative Agency this court and the Supreme Court court acknowledges a has there been a case, can we 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 can call it a ministerial, you can call it discretionary. What precedence is there for the courts to step in and exercise its duties and where is the limiting principle to that. The only case im aware of thats done such a thing and considering it and holding it at the appellate level is the 1976 case in the d. C. Circuit called ntau. The three times the Supreme Court has considered in issue of whether you can have a suit against the president for his official action. Three times it has come up and three times the Supreme Court rejected it in franklin and mississippi versus johnson. It says it was just illegal. In franklin and in nixon versus fitzgerald, at a minimum. Congress had to speak clearly. So i think its absolutely the case if this court can protect an executive agency that question sort of raises the issue of redressability and the scope of any remedy against the president , but youre making an assumption that that would be that that would be the actual remedy, an injunction against the president , but if i understood the 2nd circuits opinion in a related case they set out possible differences and possible remedies, including an injunction not against the president , but against the Business Hotel itself or the third parties who might be engaged in providing services or paying for services. That would not result in an injunction against the president. I dont think the principle that ive been the president to suit absent necessarily, if that case goes that far and were a bit far afield here. Its not necessarily 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 theyre seeking, but to emphasize, the point that i made, it doesnt matter what the precise form of relief is. Whether its injunction or declaration or anything else. The point is absent a clear statement from congress, nothing can run. What is the remedy in this case then, for a violation, as you allege, i admit you dont deny there was a violation, but whats the remedy. Your honor, where theres a remedy you have to have the right to sue in the first place. If there is no remedy, what is the role of a president above the law . Congress presumably to authorize someone to sue over emoluments clause violation and then we could have an interesting and difficult constitutional question whether that lawsuit is permissible. But congress has not even done that and at a bare minimum the court says this suit should not be allowed where congress has not allowed the case to go forward in the first case. Right here in the center. If the emolument clause, first, it provides compensation for the president , so its a provision. And the other is the prohibition of extra compensation. What if congress decided to reduce the president s salary while hes in office . What would be the remedy for the president . Yeah, its an interesting question, your honor. I havent thought about it. You have to be because youre saying categorically thats an unprecedented suit and why we should do here and you said congress hadnt provided a remedy for it and then you suggest that congress would have to do well, congress would be the one acting against the president s rights. Wouldnt the courts be the place that hed have to seek remedy . Look, i will say the same exact thing as high generality. Is that suit authorized . Is there jurisdiction, a cause of action and i dont know the answers to the questions. I know there are statutes that govern whether you can challenge the pay of a federal employee. There would have to be an answer, even the judges themselves were able to go to the court and question their compensation. That very well might be a cause of action. Well, there are cases of involving constitutional provisions outside the bill of rights that have been held to be nonjusticiable. The eligibility clause, the income patability clause, the receipts clause. There could be socalled infringements to all of these clauses, but there are many, many chawses that are structural or at least outside the bill of rights that the Supreme Court has held to be n n nonjusticiable. We dont have to go that far before you could have a lawsuit over it. Maybe congress would have to authorize such a suit. Judge motz, you asked about the body of case law and i dont want to miss this. Even their best cases, 7th versus ford they cite quite a bit. Even that case recognized there had as to be some safety valve in a District Court uses discretion in deny 1292b. If the Court Assumed for the sake of argument there might be a way to direct mandamus and nothing about a clear use of discretion. It talked about motive and egregio egregious you. There cant be because you need to demonstrate a clear a and thats not the language in cheney. You dont think you have to have a clear and indisputable right. Clear right its not like mandamus is limit today legal errors. Is the one that screwed it up, is that the way that you described it here . I read the District Court opinions with some care and what i saw was a very reasoned exercise of discretion on this interlo interlockutry, but the idea that were a roving commission where were going to grant a commission of mandamus if someone totally screwed up their case seems to open up the door very wide. Your honor, i do not know how you can reconcile that with re sewell. Because they thought the case was in the wrong forum. Nobody thought people filed in the wrong forum that the district didnt have jurisdiction to hear the case. Its worse when you sue the president when i cant be sued anywhere, why is it . Thats your position, the president cannot sued anywhere. Without express authorization by congress he certainly cannot be sued for his official actions, i think thats correct, your honor. What is an official what is the official nature of the action of taking money from governor governments . Tell me whats official by ill say two things, first, i think that question is better directed to plaintiff because theyve sued him in his official capacity. No, im asking you, im interested. The reason why i think theyve sued him in his official capacity, emoluments clause by virtue of his office, it requires any officer covered by the emoluments clause know the to accept prohibited emoluments, and if these are prohibited emoluments and holds an office, its by virtue of the office that he cant accept the payments. Its true it involves his private Financial Behavior, but its the only reason his private Financial Behavior is subject to suit is because he holds this office. Thats why its an official duty and thats presumably why he sued him in his official capacity, if you disagree with that we have an easy solution to this case and we should no, im not saying that you have a clear and indisputable right when the suit is under a clause that confers no right. The emoluments clause concurs no right upon anyone and yet, we still have a suit against the president under a clause that confers no right and provides no remedy and i say once again, this is an overextension of judicial supremacy over the office of the presidency. Its unprecedented that we would have something that is not in a provision thats not in the bill of rights, where theres no direct evidence that the president has directly harmed anyone and that a suit is generated essentially were up here making it up. Were winging it. Theres no history that authorizes it. Theres no precedent that authorizes it. Theres no right conferred that authorizes it. Theres no remedy set forth that authorizes it. We are winging it and the novelty of that, if this isnt off the rails, then i dont know what is. There are on a search involving congressional subpoenas and everything that presents closer questions, but this ones a lemon. Its the weakest of the cases that are springing up like jemison weed against this president and others hold no merit and i hold no brief for the conduct of this president or any president , but what i care about is the future of the jou judiciary and whether we should be asserting an authority with such a slight and unprecedented foundation as is contended here. Your honor, i agree. I think that under cheney, it would make a mockery of the respect that is due the high office of the president which must be concerted at every stage of the proceedings, what cheney said. Theres no precedent because no president has done this. Essentially what is what youre saying, i understand, is that we have an emoluments clause, no doubt about it, thats the law. That a president can violate it in every instance. You can have a hotel that competitively operates against the state of interest here. You can have interest in which you can invite foreign dignitaries openly to come in and take 500 rooms or to offer maralago. You can do all of these things, but at the end of the day youre saying theres nothing you can do about a president if you can concededly said, in a light most favorable violated in every instance and nothing can be done. Congress authorize my question, my question is correct. Nothing can be done to a president who openly violates the emoluments clause because the word would be he is above that law. No. Is that correct . No, it is not correct. It is a law . Is it a law . As the law stands right now, just to amend what the judge is saying, without no new action by Congress Nothing can be done . Not without judicial remedy and that doesnt make him above the law and thats cheney and nixon versus fitzgerald. How about this this situation where we know that the president holds personal disdain for the emoluments clauses. He said, they are phony emoluments clauses. Lets to a question. He said they are phony emoluments clauses and the president takes an oath to protect, preserve and defend the constitution. He characterizes them as phony emoluments clauses, whats the relevancy of that . Your honor, i think any fair characterization hes calling the if claims phony. Hes called them phony emoluments clauses. I understand, your honor, either a tweet off an off the cuff statement. Two clauses of the constitution written in 1787 in philadelphia, not in the bill of rights. In philadelphia in 1787, theyve never been amended. And no one is disputing that the emoluments clauses exist or and any fair characterization of what the president was saying is that these claims are phony because these claims are utter will ly without merit, and im well over my time, but comes down to the bottom line. With respect to the d. C. Circuit case, in your when they face mandamus and sent it back to the court. Was that a form of relief . I think its a permissible exercise, your honor. I think they could do what weve asked the court to do. If thats permissible, then there wasnt a clear and indisputable right to mandamus relief . No, i dont think well, if theres no clear and indisputable relief they granted without prejudice. They they didnt grant mandamus relief because there was no error. No, they denied it without prejudice, your honor. I feel fairly confident if the District Court had thumbed his nose at the panel, not certifying it anyway, i think we would have had a chance of mandamus review and the question you have to ask is your he have, why would you construe a federal statute to put Appellate Courts and District Courts in that position where Appellate Court could tell they clearly abused discretion and hope discord doesnt thumb its nose. My friend, the judge had a question. You know, weve listened to arguments for several minutes yet, but you still havent told us what action was the District Court legally required to take . The theme throughout your argument was the District Court was wrong because there isnt a cause of action. There are two things i think it was clearly legally required to do or at least clearly abused its discretion doing. One, we think that it should have outright dismissed the suit for a multitude of reasons. So you disagree with what the District Court did and again we come back to clear legal how is that usurping his authority . For the same i hate to repeat myself, but for the same reason it was a usurpation in sewell to retain jurisdiction over a case. And excuse me, do you have any other authority . Because its silly for us, i think, judge keenan already pointed out to you what might be a distinguishable factor between this case and sewell, but you have no other authority, right . I was going to say, again, and maybe judge harris disagrees with me about this, in the ford case, when confronted with exactly this fact pattern, right, what do you do, if, for example, a District Court obviously should have dismissed or at least obviously should have certified the court it might be a possibility you would do, i agree only a possibility. What you would do is mandamus, straightout denial the motion to dismiss. I agree its not a holding and the cases recognize that and i think theres a good reason for that. Imagine a simple hypothetical, and its not just a simple hypothetical. Imagine a District Court if you said the following, i know that circuit precedent requires dismissing the suit, i know it thats what the District Court did here. You might not agree with it, but its snow flap dash opinion. Their proposition of law, even on my hypothetical, no relief. Even if a District Court just flouts circuit precedent and says im just not following it, i dont care. Youre turning the argument on its head. Youre saying no matter what the District Court did youre entitled to mandamus relief. No, ive said repeatedly and say it again, if this was a reasonable conclusion, reasonable judges could disagree, then i agree, we dont get mandamus, so if you think what he did is reasonable im not going to get your vote and i understand it, but you have to have a clear and indisputable right not just reasonable. For the all the reasons ive said and judge wilkinson laid out, i think its clear and indisputable. If your honor disagree i think thats your strongest position to say this goes so far beyond previous exercises of Judicial Authority and the suit has such a Shallow Foundation that theres a clear and indisputable right to have the case dismissed. I agree, your honor and are you familiar with the slanenhoff case . Not enough to say yes, but i know the case. The Supreme Court there found a rit of mandamus, similar to in cheney. It said the rit was appropriately issued when theres a usurpation of power or a clear abuse of discretion and your argument, as i understand it, 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 and no one can disagree with me. Right, and to circle back to judge keenans question because youve asked a couple of times what do i think the clear error was, its the two pieces that the judge just said. One we think it was clearly wrong not to dismiss the case outright, but clearly an abuse of discretion and pointed out in the case and repeated in the cheney case, its at a minimum a clear abuse of discretion to not have said that these are substantial enough to warrant interlockutory. And to say that thats not a substantial legal question that warrants interlockutory appellate review the precedent, and judicial must be considered every stage. Proceedings, including mandamus chts that he cant get an immediate appeal to determine whether a suit should be dismissed against him and the District Court in confronting this, postponed the immunity question were going to address next in order to prevent appeal and in connection with the certification, basically answered the core question, is there substantial ground for a difference of opinion on this and the court said no. Even though the courts decision had zero precedent to support it. It had less than zero precedent to support it. It was clearly in the teeth, the District Court and there was no standing and no thats the only case it had against it, i mean, it had available at the time and it basically still said theres no reasonable ground tore disagreement, saying this 2nd District Court was of course obviously on appeal the 2nd reversed that and this Court Reversed it. So now we have dueling District Court decisions, dueling court of appeal decisions. The idea that anyone could say in a suit against the president that thats something that warrants review. I think the d. C. Circuit is saying the failure to certify in a very similar context was an abuse of discretion i understand its not this case. That its a hypothetical and that would mean if even if the District Court says im not asserting precedence is wrong, the Supreme Court not a legal question, certification denied. Their position, nothing can do about it. You dont have a case in this circuit because the underlying opinion has been vacated. Tell me what do you say are the official duties impaired if the climb mants did get what are the president s official duties if the perfect got requested relief . So there are two different aspects of that question, your honor. In terms of the relief, its imposing restrictions, whether its through declaration or injunct tiff relief on his Financial Arrangements because he holds office. Lets not skip the relief tell me if there was relief, what would be impaired . What official duties by the president would be impaired . Again, your honor, i just told you in other words, what difference does it make the president how he performs is had his duties what official duties would be impaired by the president if asked relief was granted here. And the answer is none . No, the answer is youre penalizing him for Holding Office by divesting assets. Not to be too about it, if someone told you, you cannot be a federal judge unless you give up all of your money, and thats not the relief requested. Id be happy to hear what relief theyre requesting because its not stop doing what youre doing, to be i think r injunctive relief, what about that . Injunctive relief, say youre not going to do it anymore. Not going to worry what youve done. What duties are going to be impaired . Your honor, i cant give you a better answer than i gave you. The other thing thats important, you have to remember that theres going to be litigation before we get to relief and the discovery theyve sought i have to go back to what you said to judge wynn about asking him, telling him he cant be a federal judge unless he gave up all of his money is the issue here. Its not. Its telling him, he cant be he cant use his federal judgeship to make money. That is what we are pea talking about. Fair enough. And thats still, i think, clearly incursion on his official power, right . It is restricting his ability to engage in Financial Transactions because using the presidency to make money. Totally clear thats not accurate description of the fact. Neither is im saying what you said to judge wynn is not accurate, thats not, at least in my view what fair enough, your honor. Okay, go on with whatever you want today say whatever their fact theory is bha what is an emolument . And penalizing him because he holds office. Counsel, thank you. Thank you, your honor. Good morning, may it please the court for the district of columbia and maryland. I want to start this morning why mandamus is not appropriate to certify the courts decision under 1292b. I believe its dispositive of the case. Thats one of the many issues in the case, if the court goes further it should neither be for mandamus or cause relief the president under the emolument clauses ab stated that the president is receiving Foreign Investment under the hotel. And its a limit to the final judgment rule. When congress contemplated it, it had a proposal that would allow appeal solely the at discretion of the court of appeals and similar to federal rules of civil proceedings 23f and congress rejected that at the judicial conference because this was proposed by the judicial conference. What they wanted toss a rule for the District Court and kwort of appeals before int let me ask about the d. C. Circuit case in a very similar setting and the d. C. Circuit determined that the District Courts order in that case, orders, squarely met the criteria of certification under 12 and abused its discretion in not certifying the case before it sent it back. So was there an erroneous decision by the d. C. Circuit . And how is it different from this case . No, i do think that it was erroneous in this way, judge. Its because when the District Court had declined to certify, thats the first and last word on the matter. So they were wrong . I do believe so, but whats important about the d. C. Circuits decision is that it did not take jurisdiction under 1292b. It took it back to the Circuit Court i think that the d. C. Circuit got it correct and except the court did say the failure to certify was abuse of discretion and if you look at 1292b, it has three requirements, only one of which is the core requirement is that there is a substantial ground for a difference of opinion. Of course, the other two has to be a controlling question of law and nobodys disputed that, and it has to materially advance on litigation. But the core question is whether there is substantial ground for a difference of opinion. If the court finds that that is so, then it must, not may, it must certify the statute is mandatory. And so the notion that you say that the court can judge look at this and say, i choose not to do it is not on the table. 1292b does have structure and in in case, the question was whether the District Court adequately addressed the question whether there was a substantial ground for a difference of opinion and both the d. C. Circuit and the Panel Opinion in this case concluded that the District Courts misinterpreted that or misapplied that or ignored it and therefore should have certified. And the d. C. Circuit told, suggested to send it back and have it certified and as you know, it was certified and is back up and they just argued that last week in the d. C. Circuit. And here we basically said that we could send it back and have it come back up, which was sort of a Ministerial Task after wed found that they wrongfully denied certification and we just applied the certification. But the question is, if you would wish us to follow the d. C. Practice, we have a petition for rit of mandamus before us, and we could say i mean, 1292b certification denial for us, we could do exactly what the d. C. Circuit did, send it back and tell the district judge to certify. Is that what you want . Now, judge you asked a lot in your question and i want to make sure i address it. First, i agree that 1292b has structure. It has to be of the opinion that it meets the criteria, and here the District Court went through each of the grounds, the four grounds advanced by the president why 1292b was appropriate and was not of the opinion that they were controlling questions of law as to which theres substantial ground of opinion that would materially advance litigation. As he noted and every Court Considered the question agreed all three need to be certified. How could the Court Address a lawsuit under the emoluments clause on which theres only one opinion in the country. Southern district of new york, and which went against what the District Court said and say theres no substantial ground for difference of opinion . It was creating the lawsuit out of whole cloth, the very arguments he said were here to the District Courtment you cant sue the president , the clause doesnt create rights, it goes on and on and yet, there can be no ground for a difference of opinion . And everybody sort of shocked at that notion that you could make that finding especially when the only case on that point is against the district judge and he still says theres no difference. Why cant that be an abuse of discretion . The District Court acknowledged there was the fdny case. He gave it the back of the hand, he basically gave the analysis, thats not applicable here because it involved restaurants and private hotels opposed to the International Hotel in washington. With respect when theres question of how the law to be applied to the fact. And theres no difference in the opinion, that standard doctrine is alive and well in the Supreme Court. Merely a difference of how the law is applied by the facts and i think its in the mcfarland case cited in the its an interesting discussion about interlucutory and i think we can get lost in the weeds and before we start off on this journey, i would like to have some idea where we would end up and whether there is even the slightest merit to this suit at all and a basic question that i have is where in all of this suit, where is congress . And i have a feeling that 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. Theres no congressionally created cause of action. If congress were concerned about the emoluments clause, it could have an emoluments provision inserted as an article of impeachment. It could have passed a disclosure statute of some sort with respect to emoluments. It could have established a framework that would have given the president or whatever Office Holder some idea of what an emolument even is, but what concerns me about this case is that congress is wholly absent from it. Were just proceeding on our own, on our own without a congressional subpoena, without a congressional cause of action, without any kind of action of any sort with respect to emoluments. The framers, judge wilkinson, put into the constitution two provisions with exception to emoluments and its up to the courts how to inform and interpret those clauses. Congress has authority to consent to foreign emoluments, but you say interpret it, but youre asking us to sketch something off a completely blank slate without any kind of congressional input at all and you know, in the steel seizure case, Justice Robert jackson counseled against a Single Branch of government charging head long into matters of the highest moment all by itself. Now, in that case, it obviously concerned the actions of the executive. And how much more how much more true is that lesson in the case where the least accountable branch of government, the least democratically accountable branch of government, the federal judiciary is charging off on its own without any backup or input from the legislative branch . Isnt that isnt that problematic . I have two responses to that judge wilkinson. First, is that its longstanding, that plaintiffs may seek injunkive relief, that we know from armstrong, congress can take away and hasnt here. Thats the input of congress and secondly we have a framework, congress through the foreign gifts and decorations act, the executive branch of Legal Counsel. Comptroller general from the legislature had involved emolument clauses and what we know but many of these are not selfexecuting and its crucial that the emoluments clause is not placed in the bill of rights and confers no rights and many i would say most of the provisions in the constitution outside the bill of rights are not selfexecuting. It depends on something that congress has to do to get the ball rolling, if you will, and to say that we can do all of this on our own, were coming to a position where our political differences, and theres a political overlay to this whole action, make no doubt, but our political differences are going to are seeming to me to be increasingly resolved through litigation rather than through legislation and elections. And thats what youre asking us to do, which is to really undertake unprecedented assertion of Judicial Authority and as i say, were coming to the point where elections and legislations are becoming relatively less important and judicial edicts are becoming relatively more important and were, again, acting on our own. How much on which would be so much further ground, if we were acting in concert with congress or arm in arm with congress, rather than just charging ahead on our own motion without any backup or foundation. Now, judge wilkinson, i think the Court Addressed this in Free Enterprise, you dont have to look at constitutional provision by constitutional provision. I dont believe its limited just to the bill of rights, but i think its longstanding that were a federal officer is acting, what the president is doing by accepting emoluments despite two clear constitutional provisions that Equitable Relief, were looking at a series of cases, the courts have not constrained action by federal officers. None of those involved i think were stating the obvious, that none of those cases involve the presidency. The federal offices, sometimes state offices in general, as i read the cases all of those fall into one of two buckets. They fall into the bucket, an underlying cause of action, which we dont have in emoluments clauses and number two, they fall into the bucket much using litigation to address the defense to an enforcement action. So, all those cases, a, dont involve the president and b, fall into two buckets which this doesnt fall into and when you turn to the precedent that relates to the president , you know, it seems to me that the only sliver of an argument is possibly the notion that theres some ministerial act here and theres no Supreme Court case that says that squarely, either. To refer to those cases, were really talking apples and oranges, arent we . I dont think so and i have three responses, the first as the d. C. Circuit has held versus swan. Right. The fact that theres no subordinate to sue does not act as a bar of proceedings against the president. When there is for example the department of commerce or lower federal official obviously prefer that the relief run against them, but mte says form over substance were you to say the president himself is immune simply because theres nobody else to sue. Thats the d. C. Circuit case. And similar swan versus clinton. Two times the constitution deals with emoluments. Theres three. Is it your position that the definition of emoluments and article one section nine is the same one you are certain in this case . That are two provisions present the clauses. Theres also the cost of the talks about the emoluments of office. Go ahead. Emoluments that term means profit and all through the constitutional terms we know when to talk about the office of the emoluments where of their time specifically to the particular office. We dont see that and ive of the fort or domestic emoluments closet so thats how we know the framers were intending that to be given its broadest reading. Theres a broad prophylactic provision that prevent the president from doing precisely what hes doing here. Your position is it should be read with the same definition that you say applies in article ii, section one and article one section six . The definition of emoluments does not change. If you have emoluments of office they know it is tied to the office. When you have the foreign emoluments clause using any four time should know youre supposed be reading that probably. The words of any particular constitution provision has to be read in the context of the company which they keep. We know they were meant to be quite broad and reach any profit gain or events. If the president were to buy a bond issued by a locality or estate, under your definition it would appear the interest the president would receive on that bond is an emolument . Not necessarily. This follows from not just the text but history and practice. We have here the olc has issued several opinions that deal with issues it seems to run contrary to that. You keep emphasizing any and you have a very 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 using our definition . How you would do is look at whether or not the president is getting any advantage thats not available to everybody else. If it is the same interest on the bond any bond holder is entitled to come following from the reagan policy opinion, that would not run afoul of the m. O. U. Was closet. If the president was receiving a take a Interest Rate or Something Different that was a discretionary decision of state to give them something others were not entitled to that would be a prophet, gain or advantage. Your definition now is a profit gain revenge that is different from what everyone else gets . If its profit gain or advantage and you looked on the comptroller general and office of Legal Counsel interpreted to give the context. What we know is when decisions are nondiscretionary, if the president were to get a drivers license thats not going to be something that is profligate or advantage that is going to an something neutrally available to everyone else. So its not any profit. Its only certain profits. Its not a profit when it is something available to everybody else. If you have bought something into getting a return on your money, it has to be a profit. The reagan policy opinion thoroughly analyze this fence is because it is something that is at nondiscretionary determination that is readily available to everyone else, it doesnt run afoul of the emoluments clause is. What about 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 was receiving the income from the hotel before . Like anybody else who would own a hotel or motel or any of the business enterprise. Does that fall into the class of available to anybody else . Before he was president he was entitled to foreign and i i understand but he didnt change his status there, except as understand hes a even receiving those benefits. Hes doing something else, donated them to the government or whatever it is i set that aside for the moment. His status with respect to the hotels is the same when he was a private citizen. Every private citizen who invest in something is entitled to receive the returns. He just held on to that asset while his president and is getting the very same, absent his donation, getting the very same benefit at any other member of the public would. What im trying to do is find out what the scope of your distinction is. It seems to me hes in the same class of persons that receives interest on bonds and you are saying bonds dont apply, but yet income from the hotel applies. I dont know where you get that from the constitution. I respectfully disagree. What changed when he become president was the emoluments cause sudden applies to him which means you he needs a coue receipt of speedy then why does it cut them off from the bond interest . This may be immaterial the whole operation here but im just taking you to task for your now reading these niceties and what is an emolument and using the interest on a bond is not an emolument for some reason i dont know why. Your definition seems to me it would cover that and cover everything else. Im happy to explain why. If the interest on the bond is a fixed amount he receives where the president the present or not, the same or anybody else receives, the type of nondiscretionary benefit that the office of Legal Counsel and the comptroller general have not to be emoluments. If by virtue of becoming president and his natives are available to accept and invite i would make sure i understand. What is it youre asking us to do . This court court has a widee of injunctive remedies available. The clean this would be to the festive from hotel because that would cut off speedy do what with respect to the trump hotel . Divest himself from the trump hotel. What you want us to do in this appeal . Unit asking us youre asking us to rule on the 1290 2b question. I i would ask the court to deny before starting the journey i would to some idea where im going in up and want to know if it goes to the whole redressability aspect of standing and i would like to know exactly what you would want us, what youre asking. We cant enjoin foreign business and using the hotel. You cant put a single asset in a blind trust. Are we to close the hotel for the presidency term to cut off any Beneficial Interest that the president has in the hotel . It strikes me these are pretty bold examples of interference on the take without some support from congress. What do you want from us . What are you asking us to do . Its a great question, and enhancing that i would ask that you also address first what is the injury that you allege occurs here, and then tell us how the injury gets addressed. If i may take the questions in order. We do not think its a fail to surface. Thats all you want us to do . All i i want you to do yes. Secondarily as d. C. The d. C. Ct found this not a clear indisputable right to mandamus relief of the underlined dismissal. Where do we end up . You dont get on a train unless you know the destination. To answer your question but what we want at the end of litigation, injunctive relief that addresses the emoluments violation. We dont know what an emolument is. Is an emolument 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, if that is an emolument and we are making it up whether it is or it isnt, are we not making a ruling that is going to make Public Service very inhospitable to people with the business background . People with a successful business or not so successful business men . Will be even to go into Public Service if there Beneficial Interest is going to be cut off, if theyre going to have a divestiture which is traditionally disfavored inequity at some sort of firesale . I would making the Public Sector and Public Service increasingly hostile to those with a business background . Obviously thats only one of many backgrounds that should inform governance, but we are creating hurdles to those with business experience getting into Public Service because one thing that would like to know is have some sort of certainty as to what to do and what would happen with the investments and their assets. We are providing nothing but a gigantic cloud of uncertainty which cannot help but operate as an impediment to those with a business background seeking public office. There is a lot in your question. There are those with business backgrounds that deal with emoluments clauses all of the time. Thats why we have a body of office of Legal Counsel president involving edwin from the the president down to form a military officials want to live in foreign countries. We have a backup of all the comptroller generals to give context to the emoluments clauses. Is president carter in violation of the emoluments clause when he continued to of the Beneficial Interest in the peanut farm . He put his unit formed into a blind trust so not talked about the meaning of emoluments at the margins. Were talking about the president is using the hotel to solicit for the domestic business that we know is flowing directly to it. Hes keeping the hotel open at the market rate. Why is that using the hotel to do this or that or whatever . The problems hes outlined might be a problem that you have down the road. Were deciding this case today. That is my next response is that we are at the inception of litigation. All weve done is propounded the subpoenas that do not go to the presence Paternal Affairs which put this case much for a field of cheney. If we cannot establish any other aspects of her litigation of Summary Judgment or prevail, the president has the ability to come back to the court on appeals and raise all the questions he is raising now. Counselor, if i make him i would love for you to address the question earlier which suggested i understand your divestiture or suggestion for injunction, judge diaz suggested there might be injunctive relief that youre seeking in the suit that does that run to the president but instead runs to a corporate entity or some third party. Is that part of the claim you made, a thirdparty injunction . Its possible to the Second Circuit had a couple varieties. We think investment is a clear his option but wall we want to do separate the foreign and domestic profits. Second to accomplish in some ways. Do need to have third parties in order to have an injunction running against the . I think the Second Circuit thirdparty injunction is curious because the president is the party in the case. Divestiture against the president is something thats not foreclosed by Supreme Court precedent and something inequity to stop and ultra vires act is available to us but also this will be framed going back speedy the present is a party to this case. The third party is not a party to the case. Its the president of the United States thats the defendant in the case. Thats what im not advancing what the Second Circuit had. Theres a variety of options that will be informed by the litigation and the facts as they develop on the ground. I have a question about that. You noted at the outset and im curious actually if thats true or why thats the case. If emoluments mean what you say to me in the dish the court adopted her definition, then why are you not entitled to relief now . What do you need in discovery to get an injunction . Weve made allegations that foreign and domestic governments have been spending money at the hotel or for example, that the relief is an emoluments. We are try determine whether the delegations have substance. If they do we believe we would be entitled under our definition of emoluments. If as a result of this targeted discovery, if the result is we can prove our claims, i think we go forward. My question is, your definition of emoluments is unique in a profit. So if for officials any money at the hotel which a newspaper report are, then they gains flowing to some it some of intn the hotel you say is satisfied under your definition. Im curious, what discovery would produce for you other than you already answered the legal question in the District Courts, right . Newspapers alone are not discovery that show our allegations are proven. We feel very confident we will be able to prove our allegations. You dont need much though. Not try to get damages. You need one instance to get an injunction . Thats all the more reason this court should exercise jurisdiction because this case could be straightforward, could be resolved quickly and then if the present is dissatisfied or if we are we to think it will take up six months of discovery . Thats not particularly quick. In my limited expense of discovery can take a lot longer than six months in a routine Business Case. Is this a routine Business Case . We think this can be expeditious which is why six months getting to Summary Judgment quickly of etching the question whether present is violating the emoluments clause is not the protracted discovery process im familiar with when i look at tower records. If i could ask one of the, back to suggestion that divestment might be relief you say is the cleanest. If the the president , putting e 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 at the emoluments clauses are clauses that affect individuals private behavior by virtue of the official position. That the destitute would be done by the president as an individual, a right . If thats what you seek and we got passed all these are the hurdles thats what was ordered. The president so you would seek essentially 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 them. The emoluments clauses much like the other clauses apply to the private behavior of individual virtue of their federal office. The emoluments clauses or reply to present as an individual because he is president. Asking him to the vast the hotel or whatever the ultimate outcome might be is no different from any federal official. The emoluments clauses apply to private conduct. That are olc up insensate its okay for the prince of prussia to give gifts to people. Those are helpful to us to look at but dont think they really why does whole lot. Certainly they are not binding but we know that federal officials, for a moment the cause, all of the judges, have to interact with these questions and go to office of government ethics to figure out to do with this country. And yes something that involves affecting your own private conduct to make sure for it and domestic officials do not ingratiate themselves to the individual in the private conduct. Id use him at a time but want to get back to the fact that think this court should not reach any of these interesting question at this point because we are on a petition. Let me ask you this. If what youre proposing, if a president or to transfer his ownership interest to his son, that would end it. Is absolute, assuming his son speedy let me i i want to ld up to something. Hotel which to be called the trump hotel, right . And you would expect that the foreign officials will still spend their money there, but instead of the money going to the hotel, the money goes to the president s sign, right, under that relief . Yes. So we have a hotel in washington thats called the trump hotel with profit speaks that but for officials and the profits go to the president s son and the people keep coming. How is the state of maryland adversely affected by the fact that the money is going to the sun as opposed to the father . Respectfully i think that poses a hypothetical that speedy whats hypothetical set thats what you are requesting. It doesnt square with the doctrine of campaign understanding. Of course theres no demonstrable logical economic effect that the state of maryland is hurt by the fact that there is a dividend or a profit of some kind paid by the hotel to the president as opposed to pay to his son. The competition interest that is being talked about in this case is existence of the hotel named the trump hotel in washington in competition with the facilities that are owned by the district of columbia in maryland. Its the build of foreign and domestic officials to ingratiate the president specifically by tendering emoluments. You think thats going to change . The fact 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. Instead of his donating them, he just gives his interest to his son. Its not going to change a thing. Its, were under the same status quo and marilyns interests is so attenuated it goes through the fact that okay that some is going to increase the benefits to the Convention Center in maryland. And, therefore, the state of maryland has an interest because now the hotels compared to interest is diminished and, therefore, marylands interest is increase and maryland has a standing and thats their interest. Thats the competitive entry that is alleged. I cant figure that out. Are injuries that be able to compete because we can offer the same types of annuities as a trump International Hotel and our competitor processes but we cannot offer the bill to ingratiate individuals to the president. If you remove the president for any question you taken that the president can still invite them there. All you are removing is a stream of income that goes from the hotel to him as an owner. If we the vast and have go to his son, he assigned his son that best he can still ask the prince of saudi arabia or whatever you want to come and stay in the hotel. Is that an emoluments . Hes not the recipient so its not that affects maryland because his son is getting and not in . It would cure a competitive injury because we cannot offer the opportunity to theres no calculus in which that transfer from the father to the sun changes the competitive analysis. Thats what the Second Circuit you are presuming no economic actors would change the behavior if they didnt have the ability to ingratiate themselves to the president. Theyre going to the hotel so the sun gets the prop and the president has asked them to com come. The constitution doesnt speak to it but the constitution speaks to not having the president in his own capacity to his own private businesses giving and receiving foreign and domestic profit. In other words, he could ask him to go to bunch of other clubs as long as its not the president , he may get a benefit from it but let me ask because im curious. 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 can do anything about it because congress hasnt acted says nothing you can do, is that true . The worstcase scenario, dont take a minimal scenario thats been ask him go to the worst. The president gets up there and says out 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 . That is absolute his position and that is squarely foreclosed by a long lineage of cases that allow Equitable Relief to enjoin respectfully, that is not his position pick his position is not that nothing can be done. His position is that there is a political process whereby something can be done. His position is theres a congress whereby something can be done. His position is theres a court of Public Opinion by which something can be done. When the president want to hold a g7 convention at dore gold, people didnt up the hand sensei theres nothing that can be done. There was a mince pressure brought against what was in over step in using that potential piece of private property for public business. That puts, that shows you that yes, something can be done. Litigation is not the only way to get something done because there was an immediate corrective to that business which cause the president to back off from what many in congress across party lines thought was a terribly and advice step but it isnt fair to his position to say that its nothing can be done. Just that there are other avenues than this particular manufactured let me be clear because i think he makes a good point. We are not talking nothing can be done but lets speak to reality. Essentially, even the door yell instances something the president chose to do. Cogs. Net anything. Public opinion can be the one thing is separation, if you have a congress that is actually an active and a think we can all accept that is probably the case here, a president who takes them right up to the line or right over the line, this court and the courts as i understand it, the courts can do nothing about it. That is what i understand his position to be. Judge wilkinson, the fact that might be a court of public up into not deprive this court of equity jurisdiction. The fact are multiple ways to skin a cat does not mean that this court should not act. Constitution designed mechanisms mechanism with respect to the president is not to have been engaged in private litigation but to impeach him f theres a problem. He can be removed from office or he can be voted out of office. But sue the president is a matter that is unplowed ground, and under the structure of the constitution, the Supreme Court has not been very kindly to that. Now we have this District Court this as we can so the president because thats what i think. Supreme Court Decision in nixon versus fitzgerald and clinton v. Jones directly speak to this. The present is not immune from judicial process. When youre not forget something with the inner workings of the official office of the present we are talking about angst art d at the margins that are expressly prohibited by the constitution. We are back in the armstrong territory of this court equity jurisdiction to enjoin action. My gut is not that the courts are powerless. The courts are not powerless. The courts can do a lot but we are in a far stronger position if we just have the tiniest bit of guidance and cooperation with congress. You do things in confidence in conjunction with the other branches. You dont go it alone. We are at our weakest possible posture in this case, and i fear that we are going to be tossed into the partisan scrum, which is unfortunate because when partisan fevers gripped the country the way it is, it is best sometimes for the court to back off and say we dont want to be part of it. We want to be dedicated to what we are dedicated to, which is the rule of law. And i cant see other rule of law is vindicated by suit that is wholly unprecedented in nature and that is taken on a solo basis. We are flying so low and taking a provision which is not self executing and writing our own cause of action, which the last time i checked i thought to be a legislative not a judicial matter. I know i am well over my time but i do have a few responses. First and foremost its not a political suit. The president has taken the unprecedented step one taken by every of the president not to quarrel with my good friend judge wilkinson, partisan perspective. Whatever this court does will apply to every president. Doesnt matter what party he belongs to. What we are doing is essentially not just this president were talking about. Were talking about every future president and what we do today is going to apply across the board. This is not the only instance of this may come up. And we know that because every other president has sought guidance from office of Legal Counsel of the comptroller general about how to order their affairs. We are here because President Trump has not. We are here to determine whether a writ of mandamus lies and we are having all these interesting discussions about what might happen when this case comes back to us. Arent we hear to determine what the District Court has usurped its Judicial Authority . I would ask you if you would if you would to get us back limit to the point that a think is the point at issue today. It is were i started because of you think it is dispositive. Every court has considered the question, has held mandamus is not an appropriate vehicle to demand at 1292b certification. There are clearly congress intended to be dual gatekeeper. What about the 11th 11th cit case your friend cited . It simmer to the d. C. Circuit case where it was an instruction to certify. It also relies on the mclellan case which is the same as the 11th circuit. When that case came back up to the fifth circuit, it expresses that the District Court still had the jurisdiction or the discretion to deny the certification decision even though the fifth circuit had put its thumb on the scale. That speaks to the fact the District Court is the first and sometimes last is it your view this dual gatekeeper role that 1292 seems to contemplate is absolute in every case . It is because it is a limited exception. Do we need to say that in this case . This court would have to apply 1292b as the text suggests which is the certificate thinking the appropriate advocates to this court to determine whether to take it. Where the District Court was not of the opinion and the 1292 criteria were met thats the end of the matter. If the president wants to come back on an appeal from a final judgment or in a cheney type situation there some other or he finds odious, thats a vehicle to getting back to the court. Why do we go through rounds and round of discovery and the like without having the slightest idea of what remedy we want are what the source of the right is . And all these other questions. Its like, again its like starting the journey without knowing where you are going. How many people by an airplane ticket and get on a plane and have no idea where the plane is going to land . I think i know exactly where this plane is going to lipid we have boarded a plane to tell the president not to be accepting for a domestic profits through his hotel. We think the result of that is injunctive relief. That is such a general formulation, it gives guidance to no one. There are very clear allegations that are complete. There are allegations that a come forth since the complete such as the governor of maine and kentucky do we believe we have cleared the initial motion the whole purpose litigation is to be where the plane is going to land. You never have absolute in any case. We think were headed in the direction that would like to be headed in but we have clued the initial thrill of. I do want overplayed the airplane analogy but we have gotten through tsa. [laughing] we should be allowed to board our plane and see where its litigation takes us. Congress expressly mandated that in 1292b by making by making it a dual gatekeeper in the litigation process you have to have the assertion or right of a a possible plane to remedy. The problem is there is no right. The Supreme Court has rejected that time and again. If you look at Free Enterprise, look at bonds that are structural provision of the constitution especially state more often it is help them nonissuable. I courageous have been held traditional but the bulk have been held nonand it is crucial. This particular emoluments clauses was place where it is and not in the bill of rights or in some, or without any rights conferring language. Just as he appointments clause in Free Enterprise or bicameralism we believe it is aa routine excess of the course equity jurisdiction to vindicate structural provision of the constitution. It is not a question this court needs to reach today because what we look at is whether mandamus is appropriate to take jurisdiction under 1292b. We think it is not and if the secondary question of whether or not mandamus to outright dismiss the case is appropriate we also think thats not appropriate and the d. C. Circuit agreed with us because it found no relief of ultimate dismissal with it went and the d. C. Circuit said it was not going to wade into the question of mandamus. Respectfully speeded im according what the d. C. Circuit said. It was not going to wait into the question whether mandamus was appropriate for 1292b. Im speaking to the secretary question which is mandamus at right to dismiss and with the quartet is although plaintiff has identified substantial questions concerning standing and cause of action he has not shown a clear and indisputable right to dismissal of the complaint on either of those grants. Absolutely it declined to wade into the circuit split out whether mandamus of the 1292 was appropriate but it quite clearly mandamus is focused on the usurpation of power of Supreme Court has recognized that. You can direct the court to get out which is dismissal. Will the mandamus, the court refused to let us review the question but the question comes up because the court made an analysis under 1292b that was a clear abuse of discretion. The question then comes as clear abuse of discretion was exercised or the abuse was exercised in the circumstance where the court usurped judicial power. The Supreme Court basically said those on the alternative things, usurpation of judicial power or clear abuse of discretion. That was quoted again in cheney. Considering that question the d. C. Circuit held there was not a right of dismissal of the tide of the suit. It set as a clear abuse of discretion and certified in refusing to certify and asked the court to look at again and i should this accord then certified. It went right back up and thats what it is. They took an extra step. We didnt take that step. I want to be clear about the types of mandamus. The first is for certification under 1292b. That is the dispute the d. C. Circuit elected not to wade into and thats the question of the court of appeals to have considered and found to be an appropriate. Theres a second a second request for mandamus to dismiss the complaint. The d. C. Circuit did consider it and found there was no clear and indisputable right to dismissal on that basis. We went on both series of mandamus or many of the same reasons the d. C. Circuit found on the underlying order but also because every court of appeals considered the 1292b question has held certification is inappropriate. I am will of my time. Thank you, counsel. Thank you very much. I would like to start with the mandamus standard and address some of your questions about that. You are right, that mandamus is an extraordinary type of relief and is only available quote the burden of showing the right of the rate is clear and in disputable. We dispute that. But heres what cheney for the said, said only exceptional circumstances amounting to judicial usurpation of power or a clear abuse of discretion. Or in the Supreme Court has made totally clear that a clear abuse of discretion does satisfy one of the problems with mandamus standard. Let me show you why that standard is not met you. 1292b steady, as i predicted during the opening argument her position is that no matter how flagrantly the d. C. Court abuses its discretion under 1292b, there is nothing this court can do about it. You asked pointblank and she asked to read 1292b to strip this court of any power to supervise that this accord i guess im not following my thats right as i understand your position because she says dan atherton mill but the position is we cant use mandamus to order at this accord to certify a question under 1292. But theres this alternative ground that is at issue at this case we could use mandamus to order a District Court to quash a particular discovery. We can still get at the underlying problem if we think at this accord has usurped its Judicial Authority. She goes on to say thats not as the d. C. Circuit held, that with doesnt apply because of so clear and undisputed right. Again you understand the decision carefully . What i would respond to is she is saying theres no way at all to get at the abuse of discretion in the certification. As i told judge keenan, abuses of discretion, mandamus is available for. She sang something about 1292b strips this court of that general power in this particular context. Why does it matter . I thought even your opening argument, and it was your argument before the panel was this could be a lot more straightforward if you just direct mandamus to dismiss this case. Who cares whether we can get them, order at this accord to certify question for direct appeal and we can do that. I agree about my third point, heres why it matters that it matters because the standard to get mandamus of the 1292b is whether there was a clear use of discretion whether this substantially question to this court would have to bite off the question whether was clear and indisputable air added that dismiss excuse me, read the District Courts very careful recent decision in the District Court relied very heavily on the idea that the government had only identified one of the three possible bases. It wouldnt bring the litigation to a quick close and on a stephen of the governments very the plaintiffs still have a cause of action. There was a lot of discussion but this accord not only about substantial trivets of opinion but things that were particularized to this particular case, the litigation strategy of the parties and so i feel we are not discussing the basis for the dismissal. With all due respect that is got to be incorrect. It is got to be incorrect because one of our theories, the present is not subject to the suit at all. If we are right about that case is over. Theres no further proceedings, theres nothing. The case is over. If we are right that theres at least a substantial legal question about was that the president subject to suit, it is a clear abuse of discretion. Theres this potential legal question as to standing which you are arguing. The District Court might still be right. I have a longer answer for why meet might be right. They misunderstood our three. If that was a clear abuse of discretion, a clear one, she sang we cant come here as the Appellate Court cant do anything about that. That is to user example is like if tsa let a guy through with a loaded gun and a supervisor says well, i hope he doesnt bring down the plane. Theres nothing about 1292b that puts this court in that positio position. Thats your position. The matter what the president does, theres nothing that tsa the court can do. The constitution does not allow people to sue as she put her out and correctly she is invoking not a constitutional right my calling on the other side . Yes. Counsel on the other side pointed out correctly that her claim is not based on the constitution itself. It is based on an implied cause of action in equity. The courts i a criminal jurisdiction come from congress. If you look at the Supreme Courts decision, it is a grant from congress. The quote from franklin says absent a clear statement from congress you cant sue the president. Even if you set aside franklin is look at the Supreme Courts equitable cases they say it has to be the traditional form. If it is an extension of traditional form of relief, congress has to do. They cannot point to a single instance where the Supreme Court or an Appellate Court with one exception from 40 years ago has allowed a suit against the president in his official capacity. It is a radical extension speedy tell me about the Second Circuit. The Second Circuit didnt reach discretion. The District Court only addressed speedy nobody had mandamus . Because we want in the District Court. And there was a reversal. Thats right but you asked why the Second Circuit, we want in the District Court on standing. The District Court did not reach our argument. The Second Circuit didnt reach but the gist of the questions that have come here is that what were supposed to do at this stage is to look down and see where youre going and if we cannot foresee that should be getting relief, then we should grant mandamus. Its clear from right now that airplane is going to crash. I understand but that your position. The Second Circuit will be contrary to that. The question wasnt presented. If the question is, can the airplane flight so that wasnt. The Appellate Courts dont tip of the unquestioned that the discourse has a rule on yet. It seems to me in the discussion we had today there are a bunch of questions that havent been ruled on yet. Every single one of the arguments ive made thus far are something we have argued in the courts rejected. Is a reason the government did not seek mandamus in the Second Circuit to dismiss the case outright because whether or not theyre standing nobody can see the present . We won below on jurisdictional grounds. We are willing to see what they say. I have one last point with your indulgence. I want to make two quick points about the merits. Theres been concern and i understand why people would be concerned about the president being able to act above the law without the loss. Its important to emphasize with just a brief explanation why i think their claim is wrong on the merits of the emoluments clauses. One of the key point i was going to has been illustrated by the questions. Their theory of any profit and the advantage today by adopting this discretionary definition if they sent their yet to look to history so lets look to history and thisll be my final point. In 1810, there was a proposed constitutional amendment to extend extend the foreign emoluments clause to all citizens. That amendment was passed but overwhelmingly in congress and nearly threequarters of the states. What that means is that my colleague and their position today, is that almost the entire country almost passed a constitutional amendment that what it said foreign diplomats could not buy food, housing or lodging. They would i suppose have to starve to death in the streets. That is what they are interpreting the emoluments clause to require. It is simply not tenable. Its a totally ahistorical a contextual interpretation of emoluments clause. The causes have been understood to cover profits from commercial transactions. Thank you, your honors. Thank you. Thank you, a may it please the court. This appeal raises two questions at first, does the court have Appellate Jurisdiction over the president s deal for affected and of unity, second is the present correct in his individual capacity be dismissed on one of the number of grounds that were assorted below. The answer to both is yes. With respect to the courts jurisdiction it is going to president s immunity was denied below because outlook immunity from suit, this court and the Supreme Court have emphasize the need to resolve the immunity question at the outset of the case. When the District Court declined to do so and instead open discovery, the president was subjected to pretrial procedures and could appeal the effective denial of this court as the court has recognized in jenkins. Where did the court declined to do so . The court failed to act on the motion which is been penny for a number of months, declined to address multiple requests from us to sign that motion quickly. I thought the court said he understood and used thinking about this and he would be ruling on it. What the court said at one i think it was twice. He may have said it twice but the motions to dismiss by the government were decided by the end of the summer, august. We ask for a conference as discovery moved forward. It was opened by order of the court in december. We again asked for a status conference. Two weeks went by without any indication the court was going to address our concern. On the day you requested another ruling, actually said in august you said at your earliest convenience and then in december you requested it again. And on the very day you requested it, the Court Ordered discovery, six months of discovery. Well, discovery order wasnt against the president in his individual capacity, is that correct . Discovery order reached a number of third parties which included some of the organizations that are associated with business operations. That point is neither here nor there. Proceeding of discovery against any late in the case which the president remains a defendant is subjecting him to pretrial procedures. There was a suggestion by the parties they would hold off on discovery with respect to attorney general ashcroft and the court said no, the development of the factual record puts the president in this case in an untenable position. And, therefore, be subjected to the proceedings. The denial of your immunity, thats consistent with this courts decisions. What about alshabaab alsham regarding case . It 2012. Its en banc case and we said disputed questions that arise with respect to claims of immunity, or subject to discovery if the court was to be informed. Even parties assertion of immunity are worthy submit the litigation until court becomes sufficiently informed. That may be true in some respects thats are en banc president in 2012. Well, certainly it was a collateral order so absolute immunity is a stronger protection but even in that case, the fact the District Court, and appeal comes up and are some doesnt apply in this case. Your old information you need to decide the absolute immunity question at this point. The only other choice again, and remember that once we get file an appeal, it was the court that raised the question as to whether the president in his individual capacity could be dismissed from the case. I dont think theres any basis from the District Court theres a lot of basis. The District Court told us twice it was coming. This is your only basis for appeal. It is a firm basis, affirmed by the Supreme Court. We have the right to be. Once we hear there are other issues im sorry, unless we invoke the collateral order doctrine, because we conclude somehow the District Court has denied your community, the you have another basis for an appeal right now . No. The dialogue immunity is our basis. So lets talk about denial of immunity. You rely on the cases from this court. Lets talk about the cases from this court, jenkins and nero. Correct. Neither one of them are this case, are the . No. In those cases you with the benefit of an explicit order from the court. Right. An order denying immunity is different than saying im going to reach the question of immunity but not yet. But denial of immunity is no less a denial by not action from the District Court as it is from an explicit action. Tell me, site in a case that says that. We said in a number of other cases yes, effective denials but you dont have an effect to denial. Are you a litigator or just an appellate lawyer . I gavel in the arts of litigation. The district of Maryland Historical as that cases waiting to be ruled on promotions to dismiss for three years. In seven months is nothing. That is ordinarily not a problem with this case involves the separation of powers. Counsel is in favor of careful arthur any subpoenas against the president . That implicates the president interest and again it doesnt matter, it ashcroft you cant avoid this problem. There are cases from other circuits about these sort of de facto denials of immunity but are there any like this where the time is so short . It doesnt seem unreasonable. The District Court is saying i am going to want it and yes discovery is open but not against the party seeking discovery. Im sorry, seeking immunity. I understand your point about the president s personal capacity, lawyers may have to attend a deposition but there is no discovery ordered against actual party seeking immunity. I cant find any case like that thing when youre at it, no unreasonable unreasonable delay and discovery against a Different Party that i will grant you implicates the interest of the party seeking immunity, and the court is saying im going to rule and we say theres been a factor to know. Lack of i guess i am troubled by the fact that he seems to me as uso say theres been a denial in the face of the District Court saying im getting to this, is a difficult list, and you dont have the thing that makes the other courts allowed to do that. And unreasonable delay or discovery against the party seeking immediate. I am troubled about how we fill in that gap. I cant understand you understand this, just general as matter of how litigation works, its not just depositions, it may be discovery requests, all sort of of course you could try to mandamus that. Discovery order, right . You wouldnt have two of the president do a deposition. You could come into court and get some relief. The problem is our immunity defense has not been adjudicated. The cases are very clear about okay. There was a decision on immunity. Immunity. You could appeal that. Respectfully, i dont think that is just so because if the district is saying, in some of those cases its one since. Im not going to go on immunity at this time. I need more information. It still sufficient to constitute the effective denial of, a statement that i will rule on immunity eventually but then initiation of pretrial procedures. We said no to that question that you describe. You have the unbanked en banc w and we can change that. We said no by vote of 11four. That alone is wasnt any case that said that . There enough. I dont think principles can dispute that. Everyone agrees that absolute immunity is immunity from theres another interest that we, you can recognize there may be some limit discovery to make an immunity rule. But the discovery in this case was opened up not it was not, just the opposite. It was not limited to the immunity ruling. Immunity was put on hold and the Court Ordered discovery to go ahead on a sixmonth program in which itself violates the immunity. It seems to me its more than an effective denial. Its almost an explicit denial when you order discovery and not Discovery Limited to the immunity, but general discovery which you have to attend and participate in or forgo your rights on. 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, but it was not limited to immunity. It seems to me when the court orders a program of discovery, it is denying absolute immunity, which covers discovery. I think that has to be right, otherwise the virtue of immunity in the recognition by this court and the Supreme Court that immunity has to be disclosed at the outset. Doesnt that ignore the distinction between the two capacities which the Supreme Court has also recognized . So why would we assume if discovery has only been ordered against the president in one capacity, it comes against him in another capacity . The Supreme Court, this court, weve always recognize that different. The recognition of different capacity doesnt answer the questions, whether the president , even if you use it as an entirely separate sentence, him being subjected to pretrial and ashcroft are the pros and not to do any discovery. Again, entire parties in that case. So in that case even discovery against other parties, steel implicates the immunity accept your two different cases. As individual capacity and additional counsel, reparations and party solicitation have different rights and third parties especially with the number of other issues. What we have here is we are party to the facts and we were serving in a timely fashion, to be entitled with determination forward to be subjected to a proper proceeding and discovery against even other parties, even the same party of that capacity. I dont think theres any room to quibble with that point. What we talked about a lot in the previous case, what is it you want . In this case the court clearly has jurisdiction. I know what you think about that. What do you want the order to be . The court is obligated to address article 3 standing in the first instance but you have to reach and there is no standing. You want the case to be dismissed, dont you . That is correct on immunity grounds, Standing Grounds and other issues. We have no jurisdiction we will transit the system. You will get the relief you want. I guess in this case we want the case to be dismissed in a way that you want the rationale but the result would be something. The results may not be the same depending on the basis of the dismissal. They have additional facts or benefits or determination on immunity. Nobody forced the plaintiff to act to the complaint, they did it of their own free will, we want a determination of immunity. It is an untenable position. The order decision if we determine we had jurisdiction you suggest we must first go to article 3. May we not go to absolute immunity . Is that necessarily have to come behind article 3 . The courts decision in williams referred the article 3 jurisdiction is a question of import but always have to satisfy itself. Our reading is the courts decision that you have to satisfy yourself apart from the jurisdiction. The court then proceeds to the immunity case that the cause of action question and the merits question are sufficiently intertwined with that, the court has several options available but it is a jurisdictional question in that case with article 3 standing. Obviously even theres a lot of talk about rule 41 to be satisfied on that point. I think the Court Decision including the decision to support the organization, once the District Court was divested of jurisdictions by notice of appeal and docketing of the case in this court, District Court was divested of any further ability including dismissal of the action and would create all sorts of opportunity for mischief and be inconsistent with federal rules of appellate procedure to create a polity that is unhappy with the way in which the appeal is proceeding, to unilaterally go back to this at that point in time, they will not be a Public Citizen in this court and other cases doomed the suggestions that notwithstanding this court in District Court. I guess i would like you to address the concern i have but it does seem it is an odd posture because no one is advancing this claim at this point so why isnt it advisory . I dont think it is correct they are not advancing the argument. They are not satisfied. If they did propose to dismiss the case with creditors we would at least have certainty on behalf of the president that he will not be subject to that and we wont produced by other states under the theory they have advanced. It goes further than that. The argument for the panel if i recall correctly, indicated they did not want to bring a suit again and they were reserving that right. The rule to effectuate dismissal of appeal cannot allow unilateral dismissal in any instance and weve not been approached at all to stipulate dismissal but you are right the argument of the panel confirms the president s concerns subject to further action. Dismissing him from the case at the time being at a later date, just as troublesome in the discovery process to be recognized in all cases. I do think the standing question should be decided on the same grounds and their is no standing with respect to claims arising against the federal government. It is overly speculative with requirement of an imminent traceable injury in the competitors standing they have imposed and the sovereign interest asserted below is very difficult, doesnt arise to the levelland immunity is a sufficient basis on which to dismiss us as made clear in the other one but only from the standing and only violate the email humans clause as president and would be appropriate. I will reserve my time unless there are questions. Thank you. Leah tulin. Good morning, your honors. May it please the court, leah tulin on behalf of the university of maryland. We think the Court Lacks Jurisdiction over the president s appeal for two independent reasons and that is where i will focus my attention 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 claims. As members of this court recognize the district wasnt very clear that it intended to on the motion and i would like to read the before jurisdiction can be invoked on the collateral doctrine District Court must issue a fully consummated decision that constitutes complete, formal resolution of the issue. The courts ruling must be the final word on the subject addressed. For that reason alone this Court Lacks Jurisdiction under the collateral order doctrine. Second the district of columbia and maryland file self executing rules of voluntary dismissal. This court and other courts recognized the filing of such a notice operates as a matter of unconditional rights, running to the plaintiff and may not be distinguished or circumscribed by an adversary for the court. If you have not filed your rule 41 notice until right now in the court of oral argument with that move our case . I believe it would. This Court Decision, even when there has been an investment of resources by the defendants and the court, rule 41 strikes a balance. It is a clear bright line rule, for Summary Judgment. Under your view, for instance, you could wait until after oral argument by rule 41. You could even wait until after the opinions issue but before the mandate issue. It is not what happened here but there is a fool line. That is where your rules 41 takes you. It does take us there but there is a whole line of cases that talk about the appropriate thing to do to address the concern about gamesmanship, the party who voluntarily moved the case cant get the benefit of the lower Court Decision, exists to address any benefit they get from that . There is no assurance. The dismissal would take place under the gamesmanship theory where the party dismissing was fairly certain it was going to lose. The party dismissing is not going to bet the benefit of the District Court decision in any event because the court of appeals would be unsympathetic to the position so you snatch the case that the 11th hour. The benefit of the District Court decision is not immaterial to you, you lose the benefit, a reversal at the level. How is that a safeguard against the gamesmanship with respect to rule 41 you seem to be advancing. What this court that in merricks titanic is in that case at the District Court level there were concerns the party had come in for preliminary injunction, 3 days of hearings on the pulmonary motion and the court was concerned there was the party seeking preliminary injunction had misrepresented things to the court and what the court said is it is tempting to force the plaintiff to keep its medicine in a case like this where the plaintiffs behavior has been so disassembling it is not downright fraudulent but our task is not to improve upon it. Rule 41 cases contemplate the possibility that litigants use rule 41 notice of voluntary dismissal and the other side feeling unsatisfied but nevertheless described it as unconditional selfexecuting rights. Do any of those cases deal with the dismissal filed on appeal . None of those cases are in the procedural posture. Where the District Court attained jurisdiction to appeal for that global dismissal but the case is now before us, a District Court dismissal when the case is before the Appellate Court. For two reasons. The first is it is not properly before this court. Once the notion of appeal is filed, jurisdiction invests in the court of appeals. Once the appeal is filed jurisdiction has notice in the court of appeals, the only thing that can happen in District Court is act in aid of the appeal. Undermining the appeal is different things. District court wants the notice of appeals, jurisdictions in the court of appeals. All these things, a case called dominion but there, the District Court we skirted the issue, one thing after the stay was imposed. We didnt have to deal with the thing you are presenting. I dont have any idea why you are getting into this. The only question is a collateral order appeal moving forward where there has never been a ruling. Isnt there an issue there that we have controlling question of law that doesnt require fActual Development. We have an exception to the propagation against the in Bank Decision and you are not suggesting there needs to be Actual Development here. It is a question the way the opinion reads would go through the fActual Development issue that opinion talked about. What constitutes a collateral order, there is no order. The defendant certainly could have gotten mandingo. I understand your position the question of the order below is a separate question, it is true the general rule is the filing of notice of appeal with jurisdiction to act and in rule 41 there were important caveats to that. It makes clear the notice of steel has to be effective but if it is defected, it doesnt exist. It is a nonfrivolous order, it is not effective and on friday, getting out of the trial on monday. It doesnt want to. A frivolous notice of appeal and puts the jurisdiction in the court of appeals period. With the period it is wellestablished that there were exceptions to this, in aid of the appeal. The appellate procedure for all terms on amendment being appealed. The motion for state pending appeal. To judge the iss question, the notice of appeal, the jurisdiction of the court of appeals has been divested by rule 41. I disagree. In the motion of the appeal, in 2017, filing the rule 41 notice, dismisses the case is moot. That is nonpresident ial. What else have you got . The fifth circuit, all of these are cited in your brief, petitioner dismissed his own head be us petition and the tendency of your appeal and a very recent case from the ninth circuit it was this week where the defendant, four defendants, three reached the settlement, they filed stipulation of dismissal. They filed rule 41 notice and relying on the same cases, katrina is from the ninth circuit, all of them cited on the brief. It doesnt exercise jurisdiction, the order for rule 41 notice on the time it is filed. The jurisdictional question on rule 41, this is no stranger to dismissing cases, in trial to the defendant audit. No one asks for moon us in the District Court. It got rid of it. The jurisdiction is moot. All of this is moot or not and doesnt even come up. It is a narrow narrow class of cases. It has to be a case where the defendant will not take yes for an answer. Do you agree the case against the president in individual capacity is moot . The rule 41 notice. Whether the disappear is moot. Yes or no . It is moot . We believe you refused to dismiss without prejudice . Do you reserve the right to refile a suit. How can it be moved . Our position is it is moot by virtue of rule 41. That is a procedural rule. It goes to whether the case or controversy and if you are reserving the right to file again, injunctions it is hardly moot. We want to dismiss now but file later. The position on mootness, the reason is rule 41 notice, the cases that say a tool 41 and one notice puts the parties in position to never be filed. Lets assume we have jurisdiction on this going on discovery in the case and lets assume rule 41, do you have any argument that we dont have to address jurisdiction. In response to what your colleague argued. We disagree what requires the Court Standing first. The first principle behind that is the first thing this court does, the Appellate Jurisdiction. The only basis for Appellate Jurisdiction, and the Supreme Court have two points. Taking away the assumption, maybe you are not. Even assuming the notice of appeal was effective, the basis for jurisdiction near the basis. What the Supreme Court addressed in several ways both of which post dates deal pro. The court said courts have wide leeway, choosing among grounds for disposing of the case. Immunity which is usually raised under rule 126 as affirmative defense which would be waived. That give precedence over a jurisdictional issue which goes to the power of the court to act. And assume power to act, it resolved that first. It seems to me it is not threshold jurisdictional issues where we could pick that could be waived or following the rule you are talking about. Is that ahead of the court . We have to decide our own power, and exercise that power. It is okay for the court to decide for nonconvenience before addressing jurisdictional issues. What jurisdictional issues . Personal jurisdiction . Theres a lot of difference. Article 3 jurisdictional issues. Under personal jurisdiction on subject matter jurisdiction, subject matter jurisdiction, we dont have the power to act where Justice Scalia pointed out we should Pay Attention to. And personal jurisdiction, also has to be jurisdictional but it can be waived. It doesnt be private court of the ability to act. The court said the principle underlying steel go is jurisdiction only if the court proposes a judgment on the merits. Cases after steel go, and the threshold, nonmerit issues that are properly presented and our argument, the only thing that is properly presented. There is lack of diversity appeal in a civil suit and if theres a lack of diversity to determine the merits. Under that hypothetical. Not based on collateral doctrine. There is an appeal. We can ignore the diverse city to act in the merits. You dont have the power to do that. That is when the jurisdiction, a ruling on the merits. It is not whether the court can skip to the merits to show jurisdictional issues. A number of threshold, what is the proper order . Statue of limitations, when we dont have diverse city. I think when it is a threshold. Address my hypothetical and get further along. We address the statute of limitation issue when we dont have diverse city. There is a threshold nonmerit question and the court has wide leeway. We decide statute of limitations. To deny the party, the case on the merits, to decide in which order to dispose of the issue. Where do we were word we will and limitations . We dont have power to do that. Congress gives us a little power in article 3 and one of them is diversity. If we dont have diversity we dont have the power to act. It is not a formula you decide anything we want if it is convenient or not in the merits. Understand the notion agosto act on article 3. Obviously a lower level of disposals and jurisdictions and quite a bit of leeway. They speak to the question for important limitation, i point this court, to expressly decline to address article 3 subject matter jurisdiction issues. You are basically arguing we should decide the immunity issue and notwithstanding issue. That is our commitment. I didnt understand your position. I thought there were no final orders here. The vocation of the collateral. We have no final order, we have no appealable order. All of this discussion, if there is jurisdiction here we should conclude that there is not an appealable order here, we dismiss. That is where i thought you were. You cant get there unless there is an appealable order. And jurisdiction. Aiding jurisdiction on appeal with rule 41, whether we have notice of appeal that is effective. If the answer is no end, no jurisdiction. I took the premise of niemeyers question to be he disagreed with me. You have to be clear in your answer. You only go to the question of jurisdiction. If we dont have jurisdictions here that is all she wrote. The court is whether it has jurisdiction we state your positions and these are hypothetical if we get beyond that. One of the main issues is whether there was effective denial and you agree jenkins holds that we dont do that. When your District Court was requested several times, the District Court covers immunity for proceedings for tree trial proceedings and the District Court enters an order scheduling discovery in which the president has to participate to be in the proceeding. Does that not deny the right to be spared the onus of participating in pretrial proceeding. There are a few points. I want to elaborate the details but the question focuses on the discovery order of december 3rd, the program of denied the president of immunity because you have to go ahead with discovery which covers the question of immunity. The discovery order discovers an effective denial. You argued there is no order to be appealed from, jenkins recognizes you dont have an explicit order to deny it. They are ordering discovering without addressing immunity isnt an effective denial. The reason i wanted to start with jenkins, it stands for the proposition you can have no order. In jenkins the court denied motion to dismiss in which Summary Judgment had been raised. And denied the motion, i will address immunity claims and Summary Judgment. This court said three times, i will address it later, it was raised in april and in april the court we dont even allow you to be president. On june 11th the court said it will address immunity later. And do a separate opinion. The president said at the early convenience and when you rule on my immunity and on that date instead of recognizing immunity and promising to reach it the district judge issued the order for discovery and denies immunity. The discovery order was only open in the cut official capacity. It attended the depositions. He had preserved the objection. In a lawsuit, your clients doesnt attend that position, come on. If we had immunity claim that we believed needed to be addressed but i the litigation goes on. Preserve the objection, there is no question the defendant could have done that here and if he had, the result would be that this court if it believes the mandamus standard. The gravity of your position is you want to keep the litigation grinding on and on and on the District Court has it for 18 months or a couple of years the court of appeals doesnt have jurisdiction under the collateral order doctrine, immunity, discovery takes place and there has been no ruling on the immunity and a lengthy discovery takes place in the just of it all is the president is tied up in court with litigation that the purpose of it is to have litigation and go on and on and on and of void any kind of resolution and that seems to me, i wonder what the implications of having the litigation grind on without resolution. What are the implications of that. And there are many other suits to tie down the presidency to a greater extent. That is the end of it. The first part i couldnt guess what your answer would be. The intends in litigation, tried to dismiss the individual capacity from this lawsuit and not taking the position discovery had gone forward, the deposition of the president that he would have no effective relief. I go from effective denial through mandamus and the intent would be to work through the issues in the case, and no order in which to appeal which at a minimum we believe this court does not have jurisdiction even if the court does have jurisdiction the appropriate thing to do is to send it back. The longrange implications of that, tied up in in terminal litigation without a court of appeal being able to review it and 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 friend indefinite period of time without the ability for recourse in the court of appeals for litigation that may be truly off the rails. And and the longrange effectiveness is whether we are setting this whole business, debilitating, the most basic separation of power that you can keep the executive dangling. We dont believe that is the case and we dont believe the court needs to go that far in deciding whether there was an effective denial. Whether this court will reach out and decide and immunity question in a case we dont intend to litigate. If you dont intend to litigate it, we will dismiss with prejudice. I bet your colleague on the other side of the aisle will be readily prepared to dismiss the appeal and you said and repeated today you are reserving the right to fire. Is that what this is about . Their gamesmanship going on . All that is irrelevant if there is no jurisdiction. That is all you have to say, it ought to be dismissed for lack of jurisdiction and these other issues are for District Court. It is military tactics that come up and i dont know what your motive is and that will run on the state. We have a legal. We are not the political folks arguing about this but court of law, we need to decide the legal issue in this case and forget the question of what is going to happen. Will the world turned upside down if we dont, to give up the clear legal issues before us. If it does go bad, the limit to address those concerns. I agree for the reasons i explained, this court does not have a pellet jurisdiction. This court has Appellate Jurisdiction, the case is not moot, the arguments are being pressed. In the beginning of this case, plaintiffs are unwilling to give him anything close to the relief he is seeking. I want to make a couple things clear. The notice of appeals filed included notice of appeal off of the order of discovery. It is not just simply notice of appeal on the docket for action by District Court. The court has to grapple with the question of requiring something in jenkins. I am going to rule later is not much different than im going to offer my decision at a later point in time. Taking over discovery and official capacity cases as well. You want us to take over discovery as well. To suggest it, suggesting the president that is subjecting we are talking about the law in terms of discovery. The District Courts managed discovery. Could be subject to prefiled procedures including discovery is an effective denial. But you said in official capacity you extended it to discovery. That is what you were trying to say was more than just individual and we include the question of stopping discovery in official capacity. Did you say that . Did you say that . The opening of discovery against any party in any way they perform constitutes denial. You also included an aspect of discovery in the official capacity there as well to stop that. Did you say that . Yes or no . Just now when i took the podium or at some point . On your rebuttal. Did you say that . I thought that was what you said. Im not sure what i say. Let me rephrase my point. Once discovery was open against any party in any capacity the president as a party in this case is subjected to pretrial procedures that constitute effective denial of immunity and we have a right to appeal from that order to talk about how long it will be. Looking at these various doctrines and to listen to the discussions of mandamus, it is almost as if we think this case is no different from your ordinary slip and fall case that the character of the litigation is demonstrably different. You see this all the time. We dont face it all the time and it is a case with dimensions that come on a normal Tuesday Morning and we have to take into consideration the separation of powers that are fundamental, go to the judiciary and you can just look at it in the lens of an exercise of force or slip and fall case or some other case with judicial business. This case is different. I agree this case has a lot of unprecedented highly important issues, incorporate such separation of powers and those are in favor a lot of occupants that are advanced but this is not a case where the parties have agreed and i want to address a couple points that were made, a number of cases where the appellate filed the dismissal and there is no relief for the court of appeals consistent with allowing appellate in the district cases and on top of the other cases they say, the appellate did not object under rule 401a. There was no reason for that. Those were filed in District Court. They were filed in District Court. To handle the appellate or the parties agree to do it . Because the appellate can always abandon their deal rule 41 back in dismissal, not 42. It is not a matter for this court. If the transfer of jurisdiction occurs so you cant go back there, you cant. There is some jurisdiction to go back to the appellate. It was made explicit in the fifth circuit case but what the courts are doing is creating a motion for all defendants, treating the motion filed as if it was a motion under 46. They didnt do it in the other case that stipulated to the 41 case dismissal in District Court. That was this court and again they can go back and stipulate in District Court, there has to be some jurisdiction back then. And some of those cases the party may have agreed the appeal was moved so in that case at that point dismissal could take effect. There is no agreement here that the case is moot, made that point clear. With respect to the argument regarding threshold issues i want to make the point you raised, those cases make clear the court can choose among certain threshold issues that go to power in courts, so arguments that the court has the power to recognize a cause of action in some cases, there are other thresholds but what this case is still simply state, outside jurisdiction or similar threshold issues. Help me understand about the timing rule, very similar to absolute immunity, absolute immunity and the time rule to the extent you understand where timing comes from with similar ideas with a threshold issue, ask immunity in a similar light. What the stock rule was. The point was it seems to have a similar foundation, the court said as a threshold matter, absolute immunity seems to have a similar foundation. Immunity is on the merits within with the opposition brief. The timing rule would be the same way. It is built. Im not trying to suggest theres something easy but the standing case, the absolute immunity case would recognize precedent on president ial immunity. There are two cases. This case is a lot closer to nixon than jones which i have to accept but to sum up my point of a court has that jurisdiction. One of the point about this case, theres another working issue that will bring these issues to the forefront which is whether rule 41 a1 a1 dismissal was actually effective because it did not dismiss the action as a whole in individual capacity. That is an issue the rule talks about action and later it talks about a claim in this action so your point is well taken, whether the, willing to dismiss the action. Correct. In this case there are other rules and civil procedures, adding or dropping claims or upper parties, doesnt make sense for will 41. In other cases, the extension of discovery and extension of litigative proceedings, absolutely at odds with the whole purpose of immunity and the purposes of immunity are to get the 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 the District Court proceedings are the subject of remains, go on and on and on, the value of immunity drops down and down and down and you have to look at this from the purposes of immunity and the cogency of immunity when you bring action against the president of the United States for purposes of immunity dont just dissolve when the president of the United States, they magnified, that is what we are talking about here. I think that is right. You disagree with that . Without disagreeing, the point of something we agree with which a number of actual arguments on various legal defenses go to. This is not the only context the Court Considers absolute immunity claims, the decision you need an explicit order addressing what is made, that will effectively deny all the benefits of absolute immunity and run afoul of numerous reports requiring courts to address immunity claims especially absolute immunity claims. Further questions . We will ask the clerk to adjourn the court, and agree to the council. This Honorable Court adjourned sine die, god save the United States and this Honorable Court. 3 new nonfiction books. At 2 00 Eastern Harvard University law professor Alan Dershowitz offers thoughts on how Sexual Misconduct accusations should be handled. I dont want it to go away. I want to disprove it categorically. I wrote the book and have all the documents, the fbi interviews, the narrative she wrote her email she tried to suppress, tape recordings of her lawyers, there is nobody reading this book who could come away with any doubt whatsoever that this woman made up this story completely out of whole cloth, that i never met her. Out of her own mouth i never met her. Bennett 7 15 eastern in her latest book the truth will set you free but first it will piss you off Gloria Steinem chronicles her life and career through a collection of essays quote. I think it is helpful to see what came before because now the me too Movement Thanks to all of this and thanks to technology and the web is all over the world but it is a process and now it is the majority consciousness. At 9 00 pm eastern on afterwords, university of maryland Baltimore County president interviewed by arthur and antipoverty robin hood ceo was more. We are through our work in the humanities and the sciences looking at ways of helping students to learn to ask the hard questions, to read critically, appreciate the value of evidence in a society that is bombarding us with information in different points of view, things being confused about what is truth and what is not. Educated people should have the skills to ask questions that lead to evidence that will determine what is truth. Watch booktv this weekend and every weekend on cspan2. The us mexico canada trade agreement is awaiting action in the senate after the house passed it with a large bipartisan majority but Pennsylvania Republican senator passed to me doesnt like the trade deal and explained his opposition at an event hosted by the American Enterprise institute. Senator to me to questions from the audience. Thanks for that kind introduction and most of all thanks to you and derek for hosting this and giving me this chance to share my thoughts and have a