Transcripts For CSPAN3 Fourth Circuit Emoluments Oral Arguments 20240713

Maryland and the district of columbia seek against the president the district committed several fundamental errands the suit i accept you to bring the microsoft two and a closer to if you can the plaintiffs are fundamentally mistaken in asserting that this power the court is powerless to correct any of those areas at this time. We have identified there is one overarching point and that is this the Supreme Court and cheney made it clear that the separation of powers of utmost taken, are of utmost importance when considering petitions involving the president of the note states. For example, the Court Appointed chief Justice Marshall to say in no case with the court be required against a private individual. And the court said the high respect do the office of the president must be considered throughout the entire proceeding. What does that imply in this case . The following. Their position is that even if the District Court aired in defeating debts refusing to dismiss the suit, even if every judge agreed there was air, their position is that this court is still powerless to do anything about it, that the president must go through litigation and be subjected to discovery and personal finances and only at the end of all of that can he take an appeal from final judgment, which would probably be dismissed. Can i ask you i thought it was your burden to show that you were clearly and indisputably entitled to mandamus. I thought that was one of the three requirements of that. Is that not so . That is correct, your honor. So it is not they are saying you havent met that. It is you having demonstrate that you have met that. Right . You are part right and part not right. It is true we have the burden, clear and industry billable right. There distribute their position is that even if they were wrong, if every judge were to agree, their position is we still cant get a release. That but youre skipping a step. You have to meet your burden step that shes asking you about. Im happy to do that. They have, i think we have to talk about your burden because you would agree with me that mandamus is externally relief. It is, your honor. You are entitled to this, absolutely. What i wanted to say at the outset, we have two means of showing mandamus. Let me interject. Why dont you distinguish this case from what the d. C. Circuit judge d did in a similar setting . Where they sent it back. I will answer both at the same time. I dont think there is a material distinction between what the d. C. Circuit judge and what circuit did and what youre asking. They said they clearly abused its discretion. Without deciding whether it could grant mandamus, it told the District Court, why dont you just reconsider . I dont think that a material distinction between ordering the court you ever and errored, and telling the court, why dont you consider it . You seem to think theres a fault in considering mandamus relief. Thats why the question is well taken. Thats why, im sorry to persist, maybe you can explain why you meet the requirements for getting it. Again, the first prompt. Let me say one last thing. They are related. The reason i dont think theres a difference is because if you tell the District Court they have abused their discretion, only two things are going to happen. A reasonable District Court will follow the instruction and grant certification. A in transient District Court will thumb their nose. They need more to get mandamus release, you recognize that, dont you . Thats the first prong. Clear and, the first right is different than an abuse of discretion. An abuse of discretion, but not a clear abuse of discretion. I can review the quote. But youre still skipping the first step. The first step is that you have to demonstrate a clear and industry billable right. What is that clear and indisputable right. You must think you have one. I have two. Id like to hear one. If you can answer, what was the court legally required to do that it did not do . What did it have to do that was not done in this case . I think our simplest explanation to all those questions is we think it is clear and indisputable that you cannot sue the president of the United States in his official capacity without having an express statement authorizing such a suit by congress. We think that is clear and indisputable that the Supreme Court has thrice held exactly that. I think thats your glass on what the courts held, but we know from current litigation involving similar issues, several coats courts have allowed suits against the president to proceed. How can it be clear and indisputable . With all due respect, it is not change the fact the president is clear and indisputable. What they said in franklin was whether the president was subject to the procedures act. It said it covers agencies and it defined agency as any authority of the government of the United States. That language didnt especially include the president , but nor did it exclude the president. It reasoned in light of separation of powers and the unique role of the president , textual silence was not enough and you needed an explicit statement of congress before they could be express could i go back to the standard . You said there was a clear legal error. Is it your view mandamus should issue, since theres a clear error . Thats the standard we use on direct review. I dont think anyone thinks we should grant mandamus on that ground. Theres a threepronged test showing clear and clear abuse of discretion. Indisputable right. I think you take that out of context from cheney. I know the quote youre talking about, but its in a paragraph in talking about how this is a drastic remedy, traditionally used to ensure a District Court has not usurped, or gross abuse of authority, usurped the power it doesnt have, gone outside its jurisdiction. I think saying clear error is not the equivalent of what youre talking about. I would be happy to accept those formulations because we think those apply when you have a suit against the president that is categorically foreclosed by Supreme Court precedent. Let me point to this Court Advisory as president. Precedent. That is the sort of clear usurpation that warrants mandamus review. As i understand your position, you have a clear and indisputable right in this case are seeking to usurp over the president of the United States on authority that has never been asserted or claimed to before. That is absolutely right. The point i was trying to make is that if it is a clear usurp a station of a federal agency, an agency exercising the president s executive power, then surely it is a clear separation of jurisdiction to talk of the bed, himself. The president is the chief executive. He referred to franklin versus massachusetts and cited it, i think, accurately, but that left open a suit against the president for a ministerial act. And theres some other cases, clinton versus new york and the d. C. Circuit judge against president nixon. If you could address whether you think the relief being saw is ministerial or discretionary, i would appreciate your position. First, i dont think this is ministerial within the meaning of those cases. I think the argument it is is making the precise error the Supreme Court rejected in mississippi versus johnson, they said it was ministerial. The president could not act unconstitutionally. The challenge was the certain reconstruction acts were unconstitutional. Of course you have to comply. Its that ministerial duty. The Supreme Court said no. Thats not what ministerial means. The question was if there was any discretion. If there is a dispute, that is not ministerial. Its executive. The second point i would make about this, that question is about whether it would be constitutional to allow a suit against the president. Theres an antecedent step i think is important. At a minimum, before you have to decide that difficult question, at a minimum, congress should have to authorize such a suit. Congress should say the president can be sued for ministerial acts. Thats a point of the requirement in franklin, the point of the requirement in nixon versus per gerald, and also basic avoidance principles. Whether the court construe an implied action and equity for the first time to the to present constitutional question . This court avoids constitutional question. That follows basic questions of equity. Theyre relying on common law equity power to join federal officials. There are two things about that. They cant assert such a history with the president. Its always been lower officials second, the scope of the traditional remedies have to be informed by history. The whole point of the decision is that if youre trying to extend a traditional remedy, that has to be done by congress because of separation of powers. If thats true in group a mexican honor, where it was over creditors to file suit, surely it applies to whether you can extend a cause of action for lower federal officials to the president of the United States. Were treating this as if its some runofthemill case. And it is not that. The jews theory is asserted the gst sherry the judiciary is asserting power over the United States, in an unprecedented way. Because you can understand the role of the judiciary in a case like United States versus nixon, where the courts were aiding in the enforcement in a judicial subpoena in a criminal action, and you can understand cases where the courts have stepped in to vindicate rights that have been infringed by government. But this is neither of those. There is no direct the government is not acting directly against any individual. And youre not seeking were not confronted here with enforcement of a judicial subpoena in a criminal action. Whats being asked her eis ju here is just holy unprecedented, that we are asked to create an action on our own. We have no history to guide us. We have no precedent to guide us. No remedy has been spelled out. And in the face of all of those things, we are to proceed alone to tie down the presidency in litigation. That is an excellent summary of our arguments. All i can say in addition, there snowquester there. There is no question there. Can he answer my question . If you heard a question, please answer it. I think i would say is, if all of that is not worth mandamus, im hardpressed to understand how this court can say, merely trenching on executive agencys jurisdiction is enough to warrant mandamus review. All the litany blows out of the water the case an answer to the question. Understand what he said, youre saying you agree with the. That this is the sort of external reusurpation that warrants mandamus relief. There is no Historical Authority to have cause of action. To do all of this and not allow an appeal is not only the question goes beyond whether or not this is something that has separation of power. Is he about the law . The allegations here are essentially discoveries start from third parties, primarily businesses. Its not a prerogative of the executive branch. In order to tie that in, you have to ultimately say whatever the president does puts him above the law and out of the reach of being able to deal with issues that may be there. Let me ask a fundamental question. They have been given a denial of certification and i dont know another case that has done it in this fashion. He talked about the 10 circuits that dealt with, no one said a District Court can be taken over by Appellate Court. They cannot usurp power. Congress spoke. And it really comes down to a congressional word. Let me finish. And in an instance of a District Court saying denial of certification in that instance, theres no precedent for what happening here today. Thats not true here. There is one circuit. You would have to agree, though, where the weight of authority is against you. Theres no precedent for this. The weight of authority, those entirety, let me say a couple of things. First, there is one circuit that has done exactly what weve said, the 11th circuit in the fernandez case, where they directed a District Court to certify. Their only distinction is the District Court hadnt yet ruled on the motion. The 11th circuit didnt let them exercise discretion. They thought it was obvious they directed it without giving the court a chance to screw it up, which is what the District Court here did. Point two, it is both the d. C. Circuit judge per lawsuit and the fifth circuit in them appellate case that has done the equivalent. They said the District Court abused discretion and remanded for the District Court to reconsider. Now, on this, i have a hard time understanding how any reasonable District Court judge in the face of that order would do anything other than what the judge in deseeded, which is turner d. C. Did, which is turnaround and certify a judge who could care less that a panel on this court said he abused discretion. Sent back to the District Court . That wasnt done here . I think the panel was absolutely right that it is pointless to remand it to the District Court, how do we know that . All we know is the district can thumb its nose at the court. Do you have any case with a court of appeals used mandamus as a vehicle to order a District Court to dismiss a case . Inso, asking the mandamus case of ordering a District Court to dismiss a case. The point of the District Court case was it should have been remiss because it could have been in the jurisdiction. Im saying it went through all the hoops. It did everything it needed to do for certification. The case was before the District Court. It wasnt a question it should have been in another form. Our point was it should be in no forearm. Forum. It errored in dismissing and putting into agency. It said nope, the case should go to the agency. It shouldnt be anywhere. Taking substantive action. Youre saying this court can use mandamus to decide in issue in the case, essentially because it disagrees with what the District Court no, your honor. I agree it has to be a clear and indisputable legal violation. How did the court usurp its authority . You havent told us that. If a District Court takes jurisdiction over a case in front of administrative agency, this court and the Supreme Court recognizes that usurping jurisdiction. Has there been a case can we point to any case where the judiciary has asserted the power to adjoin the president of the United States in the exercise of his official duties . You can call it ministerial, color discretionary. What president is there for the courts to step in and adjoin the president in the exercise of his official duties . And where is the limiting and support to that . The only case i am aware of that has done such a thing is in 1970 the three times the Supreme Court has considered this issue of whether you can have a suit against the president for his official action, three times it has come up and three times the court rejected it. It said it was illegal. In franklin and nixon, congress had to speak clearly. It is the case if the court can protect an evocative executive agency that question raises the issue of redressability and the scope of any remedy against the president. Youre making an assumption that would be the actual remedy, an injunction against the president. If i understood the Second Circuits opinion, they send out a number of different possibilities, possible remedies, including an injunction not against the president , but against the Business Hotel itself or third parties that might be providing services or paying for services. That may not result in an injunction. I dont think asserting the president is, im responding to the point of whether or not, if the case goes that far, but its not necessarily the case that any remedy would insult result in a direct injunction against the president. That may be true, your honor. But the point that i made, it doesnt matter what the precise form of relief is, whether injunction or relief. The point is none of that can run what is the remedy in this case . The violation that you allege, what is the remedy . Before you get to whether there is a remedy, im just talking about if you deny the fact there is no judicial remedy, what remedy is there to control, at the very first step, congress presumably authorized someone to sue the violation. And then we can have interesting and different constitutional question of whether thats permissible. Congress hasnt even done that. The bare minimum, the separation of powers say this court should not allow a suit to proceed against the president where congress hasnt other to authorize suit in the first place. Right here, right in the center. If the emoluments clause, first it provides compensation for the president. So its a provision. The other is the prohibition of extra compensation. What if congress decided to reduce the president s salary while hes in office . What would be the remedy for the president . Interesting question, your honor. I havent thought of it. You have to be because you say and categorically that an unprecedented suit. You said congress hasnt provided a remedy. These are Just Congress congress would be the one acting against the president s rights. What the courts be the place he would have to seek remedy . I would say the same thing as a high level of generality. The question would be, is that suit authorized . He would have to ask if theres jurisdiction, cause of action. I dont know the answer. There are a lot of statutes that govern whether you can pay the federal employee. There would have to be an answer. Even the judges themselves would have to go to the court ash, that might be the case. There are cases of involving constitutional provisions outside the bill of rights that have been held to thbe nonjusticiable. The incompatibility clause, the impeachment clause, the receipts clause. So, there could be socalled infringements to all these causes. But there are many clauses that are structural or outside the bill of rights that the Supreme Court has held to be nonjusticiable. Thats true, but we dont have to go near that far to say that at a minimum, before you have a lawsuit, maybe congress should authorize a suit. If i could make the last point about the body of i dont want to miss this. Even their best cases, take the seventh circuit case in ford, even that case recognized that their has to be some safety valve if the District Court of uses discretion in denying 1292b. For the sake of argument, there might be a way to direct mandamus in a situation like this, says nothing about indiscretion. Talked about improper motive, egregious situation. There cant be indiscretion because you need to demonstrate clear, indisputable right. That is not the language in cheney. You dont think you have to have a clear and indisputable right . I think clear and indisputable legal right or discretion, its not like mandamus is limited to legal errors. Is that the way he described the ruling . Because i read the opinions with some care. What i saw was a recent exercise of discretion on this opinion question. And i totally understand you have a goodfaith disagreement in this room to debate these issues. But the idea we are a roving commission where were going to grant a petition, if someone can say the agreement screwed up their case, it seems to open the door wide. All i can say is i dont know how you can reconcile that proposition. They did exactly that. They thought the case was in the wrong forum. Nobody thinks this was filed in the wrong forum. Its even worse if you sue the president when he cant be sued anywhere. It makes no sense, and that is your position, the president cannot be sued anywhere. Without express authorization by congress, we cannot be sued for his official actions. I think that is correct, your honor. What is the official nature of the action of taking money from foreign governments . Tim a watts official. Tell me what official. I think thats best directed to plaintiffs. Im asking you. Im interested. The reason is the inline its because it requires any officer covered by the emoluments clause to not accept them. If he holds the office, it is by virtue of office he cant accept these. 447 more items payments. It is true it involves his Financial Behavior, but the only reason his behavior is subject to suit is because he holds office. Thats why its an official duty. Thats why they sued him. If you disagree, we have an easy im not saying i disagree but you do say have an indisputable right in this suit is under the clause that confers no right. The emoluments clause confirms not right upon anyone and yet we still have a suit against the president under clause that confers no right and provides no remedy i say once again over extension of judicial supremacy over the officer of the presidency it is unprecedented that we have a provision that is not in the bill of rights where is not direct evidence that the president has directly harmed anyone and that a suit is generated essentially were up here making it up where winning winging it there is no history that authorizes it there is no precedent that authorizes it, there is no right confer that authorizes it theres no remedy that are authorizes it we are winging it and the novelty of this if this isnt off the rails of and i dont know what is there are other suits can congressional subpoenas closer questions but this one the lemon its the weakest of a case that are springing up like jen some wayne against the presidency in this environment others may have better errors and i hold no grief for the conduct of this con president or any president but what care about is the future of judiciary and whether if we should be asserting and authority which such a slighted on precedents at foundation as it is contented here your honor i agree i think under cheney would make a mockery of the respect that is due to the high office of the presidency which is considered to every stage of the proceedings but no president because no president has done this. Essentially that is what youre saying. I understand that we have an emoluments clause, thats the law but a president can violated in every instance they can have a hotel they can petted different operates under a state different here you can have an interest where you can invite foreign dignitaries to take 400 rooms in maralago you can do all of these things but you can say that there is nothing you can do about a president if you conceitedly said this is the most most favorite what this position is nothing can be done is that correct . My question is, is that correct . The thing can be done to remedy a president who openly and without any reservation violates them a monuments clause nothing can be done between in your words he is above that law is that correct . No it is not correct it is a law . It is a . Law as law stands right now what does to amend with the no judges saying no new action by congress is there anything that can be done not in a judicial remedy and that does not go above the law that is what cheney and nixon versus fitzgerald coming out of the situation where we know, that the president holds personal disdain for the emoluments clauses he said they are phony the emoluments clause he said there are phony emoluments clause and the president takes an oath to protect preserve and defend the constitution. He characterizes it as phony emoluments clause now what is the relevancy of that . I think any fair characterization that he has he saying that hes not spewing hes calling them phony emoluments clause i understand beyond it was either a tweet or an off the cuff statement they are written in 1787 to the constitution not in the bill of rights their rhythm in philadelphia in 1787 theyve never been amended, and no and no one is disputing the emoluments clause exist, and no one is a speeding that theyre important any fair characterize a shun that the president is saying is that these claims are phony because these claims are utterly a without merit im willing to go over the merits and im well injured Congress Moment with this back to the d. C. Circuit case is it your review that they faced a monday must question and send it back to the District Court was that an erroneous decision or simply an alternative form of relief . I think that was a premise of a chance of that i think they couldve done it if thats permissible, then there wasnt a clear indisputable right to monday best relief there if there is no clear and indisputable the can tonight without present prejudice. The d. C. Circus denied without prejudice. They they did in grand demand a miss relief because there knows no error. They denied without prejudice your honor. I feel fairly confident that if the District Court had some this nose at the panel, i would have a better chance at monday. Must and the question you have to ask yourself as why why would . You construe a federal statute to put Appellate Courts and where an Appellate Court can conceivably abuse its discretion and just hope a District Court just thumb its nose at it. We have a question that we intercepted interpreter . Weve been listening to your argument for several minutes but you still havent told us what action was the District Court legally required to take the theme throughout your argument is the district course was wrong because there was no district course of action. I think it was clearly legally the required to do or at least abuses discretion added one it at they should have dismissed the suit saw you disagree with that but discreet court did how is that usurping his authority . I hate to repeat myself before the same reason it was usurpation of authority ensued, for the district course retain do you have any other authority . I think its judge kane already reported to you what may be a distinguishable factor. I was just going to say and judge harris may disagree with me in the ford case when confronted with this what do you do when shouldve certified the core suggested what the courts should do i agree only as a possibility that the view should just mandate must denial denial of the motion to dismiss i agree its not a holding by even their cases recognized that and i think theres good reason for that just imagine a simple hypothetical its the fact that you had a District Court that said the following i know that circuit priced dismissed the suit clear as day i dont care that is not what the District Court did hear you might not agree with it but its not flat dash opinion your honor their proposition of law what theyre saying is that even on my hypothetical no relief even if the District Court just flour circuit precedence just not following your turning the argument you are entitled to monday miss relief i say it again if this was a reasonable conclusion reasonable reason can is this reasonable im not gonna get the road and understand that not just reasonable for all the reasons i said and reason that he hang out if youre on or disagrees i think youre most previous exercises of the Judicial Authority such a Shallow Foundation that there is a clear it is indisputable right to have this case dismissed. Thats right iran or mr. Macron are you familiar with a slugger off case . Not enough to say yes but i know enough to say us visit mandate moves it focused it said there it is appropriately issued when there was a new tour patient of power or attorney abuse of discretion and your argument as i understand it is both that there was a usurpation of power by the District Court and taken cognizance of this cases and refusing to certify when there was no disagreements in this conclusion basically said it was right and no one can disagree with me youve asked a couple of times with a clear error was and its what just sort of meyer just said one its clearly wrong to dismiss at a minimum we think it was clearly and its repeated in the its a minimum an abuse of discretion to mention that these were virtually everything they argued is totally unprecedented most of it is squarely in the peoples so to say and thats not even a legal question the warrants intermediate appellate review in a case where the its the president where the Supreme Court said repeatedly that he must respect to the judiciary owes him should be in the proceedings including monday marks the idea that he can get immediate appeal to determine whether a suit should be dismissed and the District Court and confronting this issue vigilante postpone the immunity question which were going to address next in order to prevent appeal and in order to the certifications basically answer the core question is there for a different opinion on this and the court said no even though the courts decision had zero president to support it it had less than zero precedent because where im standing it was squarely in the teeth that address the issue and agreed with us that there was no standing and no zone of impact thats the only case that had against it that had available at the time and it basically still said sick in the state was and and on appeal the Second Circuit reversed that and this Court Reversed it, so now we have dueling decisions the idea anyone could say in his suit against the president that there was not a substantial legal question that. D. C. Circuit saying that they certify in a similar context was a clear abuse of a discretion. Clear abuse of discretion i understand its not this case, i understand im saying a hypothetical but there is legal position would mean even if the District Court just said im not fine or the president i just dont think the president is wrong not a substantial legal question their position is this nothing the court can do about. It tell me what do you say of those official duties that are impaired are relief. There are two different aspects of that your honor in terms of the relief, its imposing intersections injunction relief be hole because he holds office. Lets not skip to the release because i think a very significant aspect of this case. Tell me if there was relief what would it be impaired what about the president would be impaired . What difference does it make to the president if he got the relief here . Hes being penalized for office will be forced to digest here. If the president of relief was granted there is nothing more you can say. No the answer is that youre penalizing him for Holding Office for making him digest divest his assets. Not to be too forward about it but if someone told you unless you gave up all your money i think most people would think that would be impairing your official actions. Its shows relief for questioning. Id be happy to hear what kind of relief theyre asking. As you may be aware stop doing what youre doing being junction. In jumped for relief, what if you say you cant do it anymore, just dont do it anymore not, gonna worry about what youve done, what duties are going to be impaired . I cant give you a better answer than i already gave. You the other answer that i think is very, important is i think theres going to be litigation before we get to that relief. I have to go back to what you said to judge women about asking him, telling him he cant be a federal judge unless he gave up on his money, its not, its telling him he cant use his federal judgeship to make money. Thats what were talking about. Fair an hour, and that still clearly, an incursion on his official powers. It is restricting his ability to engage and financial transactions. To be totally clear thats not thats not at least in my view foreign off whatever their factory is of what ivan monument is because he holds office he can engage in certain financial its an incursion on his Financial Behavior because he holds office thank you good morning thank may please the court lorraine ali khan ill say why monday most is not appropriate because i do believe that is dispositive the case of course as many officials and if this court goes further we should deny the case for dismissal because the cause of action to seek Equitable Relief against the president under the immigrants clauses a deck release stated a claim that the president is receiving in my through the Trump International hotel to begin with section 92 b it is a limited assumption to the rule when congress contemplated it it had a proposal before it that would allow solely at the eighth of 23 f and congress rejected that rejected at the recommendation of the judicial conference and what they want it was a rule of it with the concurrence of the court of appeals before interlocutors let me ask you as our opposing camp council in the d. C. Circuit case in a similar setting the d. C. Circuit the determined that the District Courts order that case orders squarely met the criteria for certification and abused its discretion in not certifying the case before sending it back so was that erroneous decision . How was it different in this case . I do think it was erroneous in this way, when the District Court declined to certify that is the first and last word on the matter. So they were wrong i do believe so i think that whats important is that it just not take jurisdiction of their 12 90 to be. All i did was send it back to the court to reconsideration. If this Court Disagrees with me, or thinks the d. C. Court guarded correct, thats the most escort could. Do except the court did say that a failure to certify was an abuse of discretion if you look at 12 92 b, it has three requirements, only one of which is a core requirement, that there is a substantial ground for a difference of opinion. The other two, it has to be where the controlling questions of law, nobody disputed that. It has to advance litigation, the core question is whether there is substantial ground for a difference of opinion. If the court finds that that is so, it must, not may, must certify. The statute is mandatory. The notion that you say the court can just look at this and say i choose not to do it, is not on the table. 12 90 to be those have structure. And in this case the question is whether the District Court adequately address the question, whether there is substantial ground for the difference of opinion, and the district circuit, and the panel and this clays concluded that the District Courts misinterpreted that, or misapplied that, or ignored it. And therefore, should have certified. Sir and the d. C. Circuit told suggested to send it back and habits or to fight, and as you know it was certified, and the d. C. Court they argue that in the d. C. Circuit and here we basically said we could send it back, and have it come back up which was a Ministerial Task after we had found that they were wrongfully denied certification. We just apply the certification, the question is, if you would wish to follow the d. C. Practice, we have petition for monday must before us. , we could say 12 9 12 90 to be denial before us, we could do what the d. C. Circuit it, send it back until the district judge to certify it is that what you want . You ask a lot in the questions, i want to make sure i address it. I agree it how structure it has to be of the opinion that it meets the criteria. And here in the District Court in the thorough opinion, it went through of the grounds advanced by the president , why it was appropriate and was not of the opinion that they were controlling questions of law as it would be materially advance litigation. As he noted and i think every court have considered the question agree all three need to be. Certified how can the Court Address a lawsuit under the emoluments clause along, which there is only one opinion in the country, Southern District of new york which, which went against what the District Court said, and say there is no substitute substantial ground for difference of opinion . It was creating a lawsuit out of whole cloth, the very arguments mr. Moore pen made here, were made to the District Court. You cant sue the president , the clauses and create rights, it goes on an. And yet there can be no ground for a difference of opinion, and everyones sort of shocked at that notion, but you can make that finding, especially when the only case is against the district judge, and he says there is no difference. Why cant there be an abuse of district . The District Court acknowledged and gave it the back of the hand he said without analysis that, is not applicable here because it involves restaurants and private hotels as opposed to the International Hotel in. Washington respectfully, what he said was that there was a controlling question of loss. When this questions about what law plies, not apply the facts. There is no dispute between the District Courts opinion and the of the a doctrine is alive and well in the Supreme Court. This is merely the law is applied to the facts. It comes from mcfarlands case that side in the president s. Its an interesting discussion about interlock authority appeals, on monday muss and the rest. I feel we can get lost in the weeds, and before we start off on this journey, i would like to have some idea, of where wed end up, and whether it is even the slightest married to this suit at all. And the basic question that i have, is where in all of the suit, where is congress . I have the feeling that congress has just been left on the back door step to just freeze in the cold, there is no congressional subpoena he there in some of the other cases. There is no congressionally created, cause of action, if congress were concerned about the emoluments clause, it couldve have an emoluments provision asserted as an article of impeachment. It couldve priced a disclosure statute of some sort, with sums we respect of emoluments. It could have established a framework, that wouldve given the president or whatever officeholder some of idea of what a minimal amount even is. But what concerns me about this case, is that congress is wholly absent from it. We are just proceeding on our own on our own today without a congressional subpoena, without a congressional car course of action, without any kind of action, of any sort, with respect to a mall lima the framers judge will concern put two provisions accepting the amal imitate its up to this court to accept these clauses. Congress has the ability to consent for emoluments but you say interpret it youre asking us to schedule something out of a completely blank slate, without any type of congressional input at all. In the steel seizure case, justice robber jackson counseled against a Single Branch of government, charging headlong into matters of the highest moment, all by itself, now, and that case, it obviously concerned the actions of the executive, but how much more true is that lesson in the case where the least, accountable branch of government, the lead democrat ably accountable branch of government, the federal judiciary, is charging off, on its own, without any backup, or input, from the legislative branch . Isnt that problematic . I have to do responses to that judge will concern. First is that its longstanding that plaintiffs may seek injunctive relief to force proof constitutional provisions. That we know from armstrong. Thats the import of congress. Secondly, we have a framework, the congress the objection to, legal accent looked legislature, and informed him arguments clause. And what we know many of the structural clauses are not self executing and, its crucial that the emoluments clause is not placed in the bill of, rights and it confirms no. Writes i would say most of the provisions and the constitution outside the bill of rights are not self executing. It depends on something that congress has to do to get the ball rolling, if, and to say that we could do all this on our own, were coming to a position, where our political differences, and there is a political overlay to this whole action, make no doubt, but our political differences are, going to seem 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 assertions, of Judicial Authority, and as i say, were coming to the point where elections and judicial legislation are relatively less important, and judicial meetings are becoming relatively more important, and we are again acting on our own, how much more, how much firmer ground if we were acting in concert with congress or arm in arm of congress, instead of just charging ahead on our own motion, without any backup or foundation . I think the Supreme Court address this and Free Enterprise, when as a head of general matter you dont have to look at the provision by provision, in Free Enterprise you could look at the clause, the amendment so i dont think its limited to the bill of rights, but its longstanding where federal officers acting, a president by accepting emoluments that at usual, Equitable Relief is available to conjoined. That date we think were on from flirting dating back to a series of cases, courts have not hesitated to show the restrain on constitutional action by officers. None of those, i think were stating the obvious that none of those cases involve the presidency. Federal offices, or state offices in general and, as i read the cases all of those failed fall into one of two buckets. They fall into either the bucket, there is an underlying cause of action, which we dont have an emoluments clause, and number two they fall into the number of using, litigation to address, the defense to an enforcement action. So all those cases, a dont involve the president , they fall into one of those buckets with this doesnt fall into. And when you turn into the precedent that relates to the president , it seems to me that only a sliver of an argument is possible the notion that there is some ministerial act here but there is no Supreme Court case that says squirrelly that either. Refer to those cases are, we really talking apples and oranges arent . Really i dont think so and i have to read responses. So freight first as a d. C. Court to judge health that there is no subordinate to sue, it does not act as a bar against the president. When there is for example the department of commerce, or lower federal official, you should refer the relief fund against them but, its clearly says it would perform form over substance. Where the president himself is immune simply because theres nobody else to. So and there is the distinct sea circuit judge correct . And they repeat its a similar language swan versus clinton. I think the Supreme Court was clear and armstrong. Then unless the congress has taken the ability to exercise jurisdiction, it exists to on officers actions by officers those are the two strands of your question. And if the law is squarely in our favor on that. Let me ask you another question you said there are two times the constitution deals with emoluments. There are actually three. Is it your position that the definition emoluments in article one section nine is the same as in this . Case yes there are two provisions acceptance of emoluments the foreign and domestic emoluments clause. There it also the clause that talks about emoluments office. I think emoluments means profit, we know gain or advantage we know when they talk about the office, off were tying it specifically to the particular office. We dont see that in the foreign or domestic emoluments clause. So thats how we know the framers were intending that to be given to this broaders reading to those are spread to precisely what hes doing here. Your position is the emoluments should be read where the same definition that you say applies an article two section, one an article one section six . The definition does not change but given context by the words around it, if you have a moment of office it is tied to the office, when you have the foreign emoluments clause, any emoluments used you should eat and then you know that you should be reading that. Broadly obviously any words in the has to be read in the context of the company which they. Keep and in the foreign and domestic emoluments clause them are quite brought and should reach any profit, game or, advantage. If the president were to buy a bond issued by a locality, for a state, under your definition it would appear that the interest of the president would receive on that bond isnt a monument. Not necessarily, and i think this fall is from now canning i think we look at history in practice. We have here the olc has issued several opinion that deals with it seems contrary to that, you keep and for sizing and you have very broad definition of that, and you just said that well, not necessarily, so, how would you differentiate one state bond, from another state bond, under the domestic emoluments clause using your definition . I think how you would do it is whether or not the president s getting any type of advantage that sounded available to anybody else. Its the same for many bond holder entitled to following from the reagan llc provision that what that would not fall foul of the emoluments clause it however if the president receiving a particularly high Interest Rate or something that was discretionary decision of the state to give something that other people would not entitled to that would be a profit gain or advantage that would fall in the emoluments clause. So your definition now and a lot youre definitions not a profit gain or advantage that is different than anyone everyone else gets . You look at how the office a Legal Counsel hut gave it context that we know that when those opinion are not discretionary, if the president got a drivers license, that would not be a profit or advantage to him its something thats new truly non discretion ali available to anyone. Else so its not any profit its only certain profits. Its not a profit again or the advantage when its available to everyone. Else it has to be a profit if you brought something and youre getting a return on your money, it has to be a profit. The reagan olc opinion thoroughly analyze is this and says because it is something that is not discretionary determine airy that it is readily available to everyone else in that poll, that it doesnt run afoul of the emoluments. Clause what about the situation where someone comes into office and owns assets what theyve been giving them dividends, in this case, the hotel was in existence before the president took office, and he was receiving income from the hotel before, like anyone else who own a hotel or motel or any business enterprise. Does that fall into the class of available to anybody . Else because you are before he was planned he was entitled to. I understand but he didnt change status except that i understand, hes not receiving those benefits. Hes doing something else, donated them to the government or, whatever it is but, set that aside for the moment. His status with respect to the hotel, is the same and when he was a private citizen. And every private citizen who invest in something, it is entitled to receive the returns. So he held on to that asset, while hes president , and hes getting the very same donations now. Hes getting the very same benefit that any member of the public would, what im trying to do is to find out of the scope of your distinction, is in response to ags question, because hes in the same class of persons who receive interest on bonds, and you are saying that bonds dont apply, yet income from the hotel applies, i dont know where you get that from the constitution. I respectfully disagreed you judge neymar, what changed when he became president is that the emoluments clause applies to him what she needs to card from any. Receipts why doesnt he cut off from the bond interests in response to the question in this may be immaterial to the oil it operation were talking about, im just taking you to task for youre creating now these niceties, and what isnt him all human and youre saying the interest on a bond, is not an emoluments, for some reason i dont know why, undergird f a nation, seems to me it would cover that and cover everything. Else im happy to explain why if the interest on the bound as a fixed amount, price its a cement that everyone else received, at the time of if not non destruction erie benefit that the Office Legal Counsel and controller general has found not to be a model molly months. If by virtue of of being present because he has made himself available to accept so what are you asking us to do . I think that this court has a wide range of injection remedies available the cleanest would be to digest with the hotel because with respect to a trump hotel . That he would divest himself from the hotel. Why do you want us to do in this appeal you are not asking us to youre asking us to rule on the 12 nine to be question. I would ask the court to deny before starting adorning i would love to have some idea of how im going to end up. And it goes to the hole readdress ability, and i would like to know exactly what you are asking what youre juan just we cant enjoying foreign businesses from your using the hotel, you can put a single asset in a blind trust, we need to close the hotel for the president s term, to cut off any Beneficial Interest the president has in hotel . It strikes me that these are pretty bolt examples of interference, with to undertake without some support from congress. What do you want from us . What are you asking us to . Do its a great question, and in answering that i would ask that first you address first what is the injury that you allege occurs here, and then tell us how does that injury good addressed . If i might take questions in order the judges were asking what i would like to do in this case. And that would be to deny the monday must petition because we dont think its available and thats all you want is to . Do all i want to do you yes, and as the d. C. Circuit found there is no clear indisputable right of monday must relief under the underlying dismissal. Where do we end . Up why dont get on the train unless you know the. Destination we want to release what addresses the emoluments violation we dont even know what are normally meant is isnt, involvement is, the president keeps the trump hotel open, and has a Beneficial Interest in order ever remain a ration comes from that, is that in a mall event . I have no idea if, if, that isnt emoluments and we are making it up, whether it is or it isnt, arent we making a ruling that is going to make Public Service very inhospitable to people with a business background . People were the successful business are not so successful businessman . Will they even want to go into Public Service, if there is Beneficial Interest is going to be cut off, if theyre going to be at the edge of divestiture which is traditionally disfavored and, some of fire sale . Are we making the Public Sector and Public Service increasingly austral to those are a business background . Obviously thats only one of many backgrounds that should inform governance but which trying to bar hurdles for those with business experience getting into Public Service because one thing that would like to know, is having some sort of certainty as to what to do, what to do with their investments, and their assets and were providing nothing, by way of certainty but a gigantic cloud of uncertainty, which could not help but operate as an impediment. To those are the business background seeking public office. I think theres a lot of one of your question, there are federal officials with business backgrounds that deal with a bit emoluments clause all the time. That is why we have an office of Legal Counsel dealing with everyone from the president to military officials i want to live in foreign countries. We have the context to the emoluments clause this as president cardin violation when he had interest in the peanut farm . He put a peanut truck farm into a blind trust im. Not talking the meaning of emoluments at the margins. Were talking about the president of using the hotel too far a and hes keeping the hotel open out a market reiterate, why is that using the hotel to do this or that or whatever . Might be a problem that all the problem that you would have down the road we arent just siding this house today are wary . That is my next question my next answer we are at the litigation, we have done is the motion to dismiss. I think this puts the case much far afield of cheney and if we cannot establish assist any aspects of our litigation of Summary Judgment or prevail, the president has the availability to come back to this court on appeals and raise all the questions that he is raising now. Counselor i would like you to the dress judge the us is question earlier. I understand your divestiture suggestion he suggests that there might be injunctive relief that you are seeking in this suit, that does not run to the president , but instead runs to a corporate entity, or some third party, is not part of the claim that you made . A third party injection . I think its possible, defects Second Circuit had a couple of varieties i think the investment cleanest but all we want is to separate foreign and domestic profits from the president. Do you need to have the third parties in order to have an injunction running against them . Respectfully i think the second third circuits thirdparty injunction is curious because the president is the party in the case. I think the best way of against the president something thats not foreclose this will be framed the president the parties the third party is not a party to the case. Its the president of the United States side that is the defendant of the case. Thats the party thats why im advancing what the second serve it had in its footnote there is a variety of options that will be informed by the litigation and facts such as they develop on the ground. But what the president is i have a question about that, you noted that off the outset and im curious, if that is true or why that is the case, if you emoluments mean what you say they mean, and the District Court adopted your definition, then why arent you entitled to relief now . Why do you need and discovery to get an injunction. Judge rushing, weve made allegations that a governments have been spending money at the hotel, we have read try to determine whether these allegations have substance. If they do then we, would be entitled under their definition of emoluments, if the results target did discover the result is you can prove our claims and we can go forward. I guess my question is your definition of all humans is any gain or profit, but so foreign officials spending money at the hotel what you have reports that say they are, the gains flowing to someone with whom has an interest in the hotel, you say is satisfied under your definition, i guess im curious what discoveries would produce for you, other than the ones youve already answered the legal question in the District Court . Newspapers alone are not discovering that prove are allegations, we feel very confident that we will be able to prove our allegations. I guess you dont need much, though if you dont not trying to get, damages you need one indecency right . To get an injunction . And that is all the more reason why this court should be exercising jurisdiction now, because this case could be resolved quickly on the presidency satisfied all we are, you think itll take about six months of discovery, thats not particularly. Quick im not trial or but in my little bit of experience, discovered takes a lot longer than six months in a routine business case. We think that this can be expeditious which i think six months discovery getting to Summary Judgment quickly, answers the question of whether the president is violating the emoluments clauses, its not the protracted discovery process that im familiar with when i look at a trial. Records if i could ask, back to your suggestion that divestment might be a relief, that you say is the cleanest, if the president put an aside for the sake of discussion the earlier preliminary points, if the work to be done, that would be done by the president individually correct . Absolutely but the emoluments clauses are clauses artifact and of individuals private if its behavior by virtue of their position. The divestiture would be done at by the president as an individual, am i right about . That is not what you seek and you got past these other hurdles that was ordered . We 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 that the emoluments apply to him and hes not a party in this in individual capacity in this. Case emoluments clause applies to the private behavior of individuals by virtue of their federal office. The emoluments clause only apply to the president as an individual because he is president. Asking him to divest from the hotel or whatever the ultimate i walked come might be, is no difference from any federal official. I think the olc opinions made clear that the emoluments clause of the apply to private conduct. For the prince of there are opinions that say that was okay for the prince of pressure to give gifts to people, those are helpful but do not bind us. Certainly theyre not binding, but they form the practice and we know federal officials because the emoluments plot cause applies to every officeholder, excluding all of you judges, have to interact with these questions, and go to offices of government ethics, figure out how to deal with this misconduct. Yes that deals affecting your own private conduct, to make sure foreign and domestic officials cannot ingratiate themselves to the individual, and private conduct. I am out of time but i want to get back to the fact that these court should not reach of any of these interesting questions at this point, because we are under a monday must petition. Can i ask you, if theres a leaf that your proposing that if the president were to transfer his ownership to his to interest to his son, what that would end it . As soon absolutely assuming his son i want to lead up to something, the hotel would still be called the trump hotel . Right and you would expect that foreign officials will still spend their money there, but instead of the money going to the hotel, the money goes to the president son, right . Under that relief . Yes okay so we have the trump hotel in washington called the trump hotel, where the profits be sent by foreign officials, and profits go to the president sun, 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 going to the father . Respects fully judged, that causes a hypothetical, that doesnt what is a hypothetical is that you are. Requesting it doesnt square with the standing of course not. It bears no demonstrable economic effect that the state of maryland is hurt by the fact that there it 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 beaten thats being talked about in this case is the existence of the hotel named in the trump hotel in, washington in competition with the facilities that are owned by the district of columbia and maryland. It is the ability of foreign and official and domestic officials to ingratiate the president specifically by tendering emoluments you think thats going to change the fact that the president doesnt get right now as a matter of fact i, understand the president doesnt get any of those profits from the foreign, agents so instead of his donating to him, he just gives his interest to his son. Its not going to change a thing. Its where under the same status quo, and the state of marylands interest is so attenuated that it goes to the fact that somehow, will increase the benefits to the Convention Center in maryland, and therefore the state of maryland has an interest because now, via hotels competitive interest is diminished and, therefore marylands interest is decreased, and marylands interest has a standing increase. Marilyns interest is the crease and i cant figure that. Out we can offer the we can offer the same kind of amenities to ingratiate event individual to the president. If you remove the present from vacation youve taken, that where not removing the president from the equation. The president can still invite them theyre all here removing, is a stream of income that goes from the hotel to him as an owner, if if we do divest and have it go to his son, he assigned to his, son its still the hotel, and he can still ask, the prince of saudi arabia or, whatever, you want to come at this hotel. Is that an emoluments . Hes not the recipient of the profits, so its not an emoluments. That personally affects maryland because his son is getting hit and not . Him it would obscure the or the ability to compete on equal footing because we dont have the opportunity there is no calculus in which the that transfer from the father to the sun changes the competitive analysis. Thats what the circuit defense says. I respectfully disagree because youre assuming that no foreign actors would ingratiate themselves. They dont ingratiate they go to the hotel. And while we found that conduct an satisfactory the constitution speaks to foreign and domestic profits in other words the emoluments clause as long as its not the president making the benefit but let me ask this question because im just curious from the opponents position on this even if you want to discovery, proved everything they had and more, of what was going on my understanding is that the position of the seven the president you cant do anything about it because congress has an acted is that true, the . Means worstcase kenner scenario dont take the minimum scenario go to the worst. President gives an and says on loudspeaker to everybody, if you cut them out my hotel its a good thing. And i need you to come here on advertising just be here. Nothing can be done is not the case . That is absolutely his position its foreclosed by armstrong and along lineage of cases, respectfully that is not, his position. His position is not that nothing can be. Don his position is that there is a political process whereby something can be done, his position is that there is a congress, that wherein something can be, done his position is that the court of Public Opinion by which something can be done, the president wanted to hold the door all or whatever people didnt throw up their hands and say there is nothing that can be done, there was immense pressure brought against what was an over step in using that particular piece of proper private property for a piece of public business. But that puts that shows you that yes, something can be done, litigation is not the only way of getting something. Don because there was an immediate corrective to that doral business, which caused the president to back off from what many in congress across party lines, thought was a terribly illadvised step. But it isnt fair to his position to say that can be done. Its just that there are others avenue than this particular manufactured suit. Lynn let me be clear, because i think judge will consider makes a good point. We are not talking about nothing can be done. But lets speak to reality. Essentially, even the doral business the congress has a as undone a thing, Public Opinion can be there, what im saying is that the anchor of power of courts if you have a congress that is absolutely inactive, and we can all accept that is probably the case here, a president who takes goes right up to the line or over the line, this court, and the courts as i understand, it the courts can do nothing about it. That is why understand is position should be, and judge will consent the, fact that there might be the court of Public Opinion, theres not derive this court there might. Except the constitution designs mechanism and the constitution does not design machinations have engaged in litigation, but to impeach him if there is a problem. He can be removed from office, or he can be a voted out of office, but to sue the president , is a matter of im plowed ground, under the structure of the constitution, the Supreme Court has not been very kindly to that. Now we have this District Court that says that we can sue the president because thats what i. Think Supreme Courts been in this versus fitzgerald and clinton versus jones pick to on this, the president is not immune from judicial process in all circumstances so here when you are looking at something that is not the inner workings of the official office, we are talking about something farther at the margins of expressly prohibited by the constitution. We were just back in the armstrong territory of this court equity jurisdiction to enjoy action. The courts are not powerless the core the poor cannot be powerless the courts can do a lot, but we have a stronger position we have just the tiniest bit of guidance and, cooperation with congress. You do things and governance, in conjunction with the other branches, you dont just go at it alone. We are are at our weakest posture in this case, and i fear that we are in this tossed into the partisan scrum which is unfortunate because when partisan fevers gripped the country the way it is, its best sometimes for the courts to back off and say, we dont want to be part of it. We want to be dedicated to what we are dedicated to, which is the rule of law, and i can cannot see how the rule of law is indicated by a suit that is unprecedented in nature, and has taken on a solo basis, we are file flying solo. And taking a provision which is not self executing, and riding out our own car course of action, which the last time i checked, i thought to be a legislative, not a judicial matter. I know him well over my type but i have a few responses, first and foremost its not a political suit. Its when the president has taken the unprecedented step taken by every other president not to call of my good friend judge will concern, but the partisan probe perspective whatever this court does, is going to apply to every president , doesnt matter what party belongs to, what we are doing is essential not, just to this president didnt we are talking about, what were talking about our future president , and what we do today is going to apply across the board, guess is not the only instance this may come. Up absolutely, and we know that because every other process the president has sought guidance from the office of Legal Counsel or the controller general, about how to order their affairs. Where here because trump is not where he had to determine whether the mine they must lies and were having all these interesting discussions, about what might happen when this case comes back to us, the council arent we really hear to determine whether the District Court has usurped its Judicial Authority . Absolutely i would ask to get us back a little bit to that point, that i think is the point at issue today it is where i started because i think its where dispositive every court has held monday most is not an appropriate vehicle to demand a 12 90 to be certification. Judge friendly exclaimed that congress intended for there to be a dual gatekeeper what about the 11th circuit case the your friend cited . Served similar to the d. C. Circuit case of where the 11th circuit, when that came to the fifth circuit what they expressively said was that the District Court sit still had the jurisdiction, discretion to deny the certification decision even though the fifth circuit have pride its thumb on the scale. That speaks to the fact that the District Court is the first and sometimes the last is it your view that this dual gatekeeper role that 12 92 seems to contemplate is absolute in every case . It is because it is a limited exception to the final judgment. Errol do we need to say that in this case . I think this court would have to apply 12 92 to this case. It can be it kicks to this court to whether to take it, but where the District Court was not of the opinion of the 12 92 criteria were met, thats the end of the matter. If the president wants to come back or if in a cheney situation there was another order he finds particularly odious, that is a vehicle of getting back to this. Court why dont you just go through rounds and rounds of discovery, and the like without, having the slightest idea of what remedy we want or what the source of the ride is. And all these other questions is it or it is again like starting the journey without knowing where you are going. How many people buying airplane tickets get on the plane and have no idea where the plane is going to land . I think i know exactly where the plane was going to land we boarded a plane to tell the president not to accept foreign and domestic profits through his hotels. The result of that is that is injunctive that is such a general formulation it gives guidance to know. And there are very clear allegations in our compliant the gsa leach lease there are allegations that have come forth since, such as the main government of kentucky, we have clear the initial motions the whole purpose of litigation is to figure out where the plane is going to, land you never have any absolute certainty in any case. We think we are headed in the direction that we would like to be headed in, but we have clear the initial threshold, i dont want to overplay the airplane analogy what weve, gotten through tsa and we should be allowed to border plane, and seaward litigation success. Congress expressively mandated that in 12 90 to be by making it a double gatekeeper system. In the litigation process, you have to have the assertion and the right and a plausible plane to a remedy. There is no right here there has been confirmed on anybody by this provision. And the Supreme Court has rejected that time and again, and if you look for Free Enterprise a look at bonds there are structural positions of the constitution that specifically, state more often its i grant you that air has held it is crucial, this particular emoluments clause was placed where it is, not in the bill of rights or in some without any rights conferring language. Just as the appointments clause in Free Enterprise and shorter we believe it is routine of equity jurisdiction for structural provisions of the constitution it is not a question this court needs to reach today, because we are looking at whether monday misses appropriate to take jurisdiction over 12 90 to be, we think it is not, and there is a second question whether monday must to our right outright dismissed the case that we think it is appropriate to the end of the sea Court Circuit a great. The sikh d. C. Court at circuit say they were not agreeing to the. Im quoting about the d. C. Circuit said. It is not going to wait into the question of whether monday must was appropriate for 12 i need to be, im speaking to the secondary question in the petition which is monday based outright to dismiss. The court said it although the plaintiffs have identified questions concerning standing and car course of action, it has not shown a clear and it is beautiful right to dismissal of the complaint on either grounds it. Declined to wait into the circuit split of whether the monday muss of the 12 90 to be was appropriate, but it clearly monday mrs. Clearly on the extirpation of judicial power, the Supreme Court has recognized, you can recommend the court to get, out which is dismissal. And so there are two avenues for monday me is that the president has thought 12 90 to, be 12 92 b was it, the mandates the Court Refutes the question comes up because the court made an analysis under 12 92 b, that was a clear abuse of discretion, but the question then comes a, clear abuse of discretion was exercised, in a circumstance where the court are reserved judicial power, and the Supreme Court, for instance, in the slot in half opinion said those are the two alternative things, usurpation of judicial power or clear abuse of rift stretch and that was closer than again and cheney. And considering that very question the d. C. Circuit held that there was no clear right of dismissal of the. Suit it didnt get into waited asked it was a clear abuse of discretion and it asked the court to look at it again and, you know the District Court certified, and it went right back up, and thats where it is. They took an extra step, we didnt take that. Step i want to be absolutely clear about the two types of monday must the president is seeking the first is for certification and draw money to be. It is the dispute of the d. C. Court judge elected not to wade into and that is the question of the Court Appeals i found to be an appropriate there is the second request for monday mr. Dismissed the claim pain complain the d. C. Circuit judge there was no care right for dismissal on that basis we. Went on both series of monday must for many of the same reasons that the court found that the 12 90 to be questions is considered to be an appropriate. I know i am well over mike time thank you counsel four points id like to hit id like to start with a monday missed a standard, i like to address you are absolutely right. That monday misses an absolutely the burden of showing is indisputable we dont dispute that. But heres what cheney further set. Only exceptional circumstances amounting to a judicial usurpation of power, or a clear abuse of discretion. Or in the distance just junction of the Supreme Court is make totally clear that an abuse of a discretion does satisfy one of the problems with monday missed and. Or point to. Now let me show you why that standard is not. Here let me start with a 12 90 to be standard, and a judge he is, as i predicted during my opening argument, her position is that no matter how flagrantly the District Court abuses its discretion under 12 money to be, there is nothing this court can do about. You asked that point blank and she answered. That is the necessary implication of her position she has to read 12 92 b two district this court of any power to supervise a District Court. Im not following where that is right as i understand her position, this is awkward because youre not standing up anymore, the position is we cant use monday must to order a District Court to certify a question under 12 90 to bite, but there is this alternative ground, at issue in this case we could use monday must for instance to order a District Court, to quassa particular discovery. Subpoena we can still get underlying profit blossom if we think that this court has usurped their judicially authority and she goes on that it doesnt apply here but again do you understand that position differently . I think how what i was respond to is that she saying there is no way at all to get out the abuse of discretion in the certification, as i told judge peanut, abuses clearly abuses of discretion, monday misses available for. It and she is saying that something about 12 money to be strips this court of the general power in this context. Why does it matter . I thought even your opening, argument and it was circulate an argument before the panel this was going to be much more straightforward if you were just direct monday miss to dismiss this tech case who cares if we can order a difference Circuit Court of when we can do . That two things about that one is certainly agree, here is why it matters it matters because of judge knee myers question. The scanner to getting monday miss as of the 12 92 b was a question of whether there is substantial legal question. This court wouldnt have to bite it off, whether it was an into space indisputable air it also has to be contributing to those, i read the District Courts very carefully reasoned decision on this and the District Court relied very heavily on the idea that the government had only identify one of the three possible bases. So even if you hadnt interlocutors the appeal on that it wouldnt bring the litigation to a quick close, and then on the barracks under the governments theory, the plaintiffs would still have a cause of action, there was a lot of discussion by the District Court not only about differences of opinion, but about things that were particularly rise to this particular case, the litigation strategy of the party, and and so i feel that we are not discussing the basis for the dismissal. That has got to be inter incorrect, i know one of our ferries is that the pro president is not subject to sue at all. And if we all right there is no further proceed proceeding there, is nothing the case is over. So if we are right, that there was at least a substantial legal question about whether the president subject to suit, if its in a clear abuse of discretion. Or if there is a substantial legal question about standing, though this record might still be. Right i have a longer answer for why theyre wrong about, that that its port on our briefs, they are misunderstood our theory. So we should issue monday most of the district coal misunderstood . They clearly misunderstood on our theory but on the president being subject to suit, that is the end of it. If there is substantial legal, doubt which i think there is, ultra that in the second, if that was a clear abuse of discretion, a clear one, she is saying that we cant, you as an Appellate Court cant do anything about. That and that is just messaging us to, use an example, is that if tsa letter guy through with a loaded gun, and the supervisor to says well, i hope it doesnt bring down the. Plane there is nothing about 12 money to be, the puts this, court discord in that position. I think thats your position. No matter what the president , does there is nothing the court the tsa can do. And that is a great segue to my third question my answer the president is not explicitly prohibited from the purview, but he is not explicitly a colluded eve either. Out of respect for the separation of powers, we find that textual silence is not enough to subject the president s the operations of the ap. Our position as the api is in the constitution of the art of the United States . Its attached statue that authorizes but its not in the constitution that is correct your honor, the constitution does not allow people to sue as, she pointed out incorrectly, she is invoking not the constitutional youre calling on the other side . Might yes my colleague on the other side, i apologize council 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 cause of action such a pasteurization comes from congress. If you look at the Supreme Courts decision, its a grant of equity jurisdiction from congress and it is implied. That is why this quote from franklin says is so important it says absent a clear statement from, congress you cannot sue the president. Even if you set aside franklin, if you look at the Supreme Courts equitable cases, they say it has to be this traditional form of relief, it is an extension of traditional forms of relief congress, has to do, it and they cannot point to a single instance, where the Supreme Court, or an Appellate Court, with one exception from d. C. From 40 years ago, has allowed a suit against the president , and his official capacity. It is a clearly a radical extension, tell me about the Second Circuit the Second Circuit . The Second Circuit didnt reach this question your honor. The District Court only addressed because no one had monday missed anything. No because we won in the District Court and there was a reversal of year when exactly and we won on standing, we won on the District Court, the zone of interest the District Court didnt reach the argument. The second court didnt rate , but the gist of the questions, that have come here is that we are supposed to do is look down and see where you are going, and weve we cannot foresee that you are getting getting relief, then you should grant monday muss is it all right . We want to see where the a plane is going before we get on. It i think its clear from the right now that is that air play is going to. Crash because the question wasnt presented if the question is because the air play fly certainly was the Appellate Court courts dont rule on what the District Court havent ruled on yet. It seems to me that in the discussion weve had today, there are whole of bunch questions id havent been ruled on yet. Every single one of the arguments of made this far is something that weve argued in the District Court rejected. Is there a reason the government did not seek monday mess in the Second Circuit to dismiss the case outright, because whether or not there is sending no one can sue the president . By the time we got to the Second Circuit you dont offer alternative grants we one below andrew just route jurisdictional. Grounds okay good, will wait to see what they say. One last point with your courts indulgence, i just want to make two quick points about the merits there have been a lot of concern, and i understand why people would be concerned about the president not being able to act above the law without the laws. I think its important to emphasize including my are argument today, a brief explanation of why we think their claim is wrong on the merits of the emoluments clause. One of the key points i was going to make has already been elucidated by the judge question. Their theory that every profit, and they abandon its today, by adopting this the discretionary they say apparently have to look into history so lets into history in this will be my final point. In 1810, and this was pointed out before, there was a proposed constitutional amendment, to extend the foreman for an emoluments clause two all citizens. That constitutional amendment or spice by overwhelmingly in congress, and nearly three quarters of the states, what that means is on my colleague and the councils position today, is that almost the entire country, almost passed a constitutional amendment, which wouldve said foreign diplomats could not buy food, housing, or lodging, they would i suppose have to starve to death in the streets, that is why they are interpreting the emoluments clause to require, it is just not tell tumble it is a totally a historical a contextual interpretation of the emoluments clause, the clause has never been understood to trump to understand profits from personal to commercial transactions think iran or maybe seat it thank you wouldnt it may please the court, this appeal raises two questions first does the court have Appellate Jurisdiction over the effect of denial of immunity, and second is the president correct that the plaintiffs complaints against him must be dismissed on one of the number of grounds that were asserted below, the answer to both those questions is yes, with respect to the courts jurisdiction it, is clear that the press didnt absolutely immunity was denied below, because immunity from suit, this court and the Supreme Court have it repeatedly and forces the, need to resolve their immunity question, at the outset of the case. The District Court declined to do so, and instead open discovery the, president was subjected to retrial possess procedures, and could appeal the effect of denial to the score court as the court as recognized in jenkins and in euro, word it where did the court declined to do . So it declined to address multiple requests to sign that motion quickly. I have thought that the court said that he understood and was thinking about this, and it would be ruling on. It what the courts said at one point, i thought it was. Twice he may have soda twice the motions to dismiss by the government were decided by the end of the summer, it was augusta at the time, we asked for a status conference his discovery moved forward, it was opened by an order of the court in december, we asked for a status conference. Two weeks went by without any notifications of the court, that was going to address their concerns. On the day you requested another ruling you said in august at your earliest convenience and, that in december you are requested again and on the very day requested of the court order discovery. Six months of discovery, program 30th subpoenas it wasnt against the president in his individual capacity as a correct . Well, discovery order reached a number of third parties through the organizations associated with a Business Operations but the point is neither neither here nor, there the proceeding of discovery against anybody is subjecting to to pretrial procedure. If you remember the Supreme Court address the question that there was a suggestion there that the party would hold off on attorney general ashcroft, on the court said no the development of the factual record put the president in this case in an untenable position, either participates in those proceedings, protect the development of the record, sort of whatever rights the client may have, and therefore be subjected to the proceedings, the denial of your immunity, thats our be able to taken a thats consistent where this courts. Decisions what about also barr a . Also barr case . Aides its 12, 012, in bank a bank case, we said disputed questions arise and prospect to immunity, are subject to discovery of the court wants to be informed. Even a party whose assertion of immunity to submit two of the burdens of until a court become sufficiently informed to roll. That may be true and some aspect thats a higher in bank precedence and 2012, there was a color collateral order qualify to immunity case. Correct not absolute immunity ill give you that absolute immunity is obviously a stronger protests protection but even then that case, the fact that the District Court appeal comes up, doesnt apply to this case. You have all the information you need to decide the absolute immunity question at this. Point the only other choice and again, and remember once we do file an appeal prepared to roll it was the court that raise a question as to whether the president could be dismissed from this case. I dont think theres any basis to assume that the District Court and discovery there is a lot of bases, the District Court told us twice it was coming and you have to, be i mean, this is your only basis for appeal. Is interlocutors a order. Yeah well the only basis for its the form bases of form by the Supreme Court, we have the right to be here. Once here there are other issues im, sorry unless we invoke the collider will order doctrine, because we conclude somehow that the District Court as an idea immunity, do you have another basis for an appeal right now . No immunity is the are the dialog immunity is our basis. Lets talk about denial of immunity you rely on the two cases from this court, okay lets talk about the two cases from this court. Jenkins a narrow. Neither one of them are come to this case are . There in those cases you had the benefit of an explicit court order. Right an order denying immunity is a different than im going to reach the question of immunity, but not yet. The might denial of immunity is no less a denial by non action from the District Court as it isnt it an explicit action. Sign me a case that says. That ice think i said a number of cases indicate. Affective denials, but you dont have an effective denial. You have, are you a litigator on appellate lawyer . I dabble in the arts of litigation. You know the, district of maryland a, historically has had cases wanted waiting to be rolled on for motions of today be dismissed, to be dismissed for three years. So seven months is nothing. And that is ordinarily not a problem but, this case involves the separation of powers councils in favors of careful and add potential to these matters, once discovery is over once there are dozens of are there any subpoenas against the . President that implicate the president s interest, and as ashcroft came you cant avoid this problem. But counsel can i ask you there are cases from other circuits about these the factor denials of immunity, but there are there any other like this over a period of time so short. There is no reasonable delay, there District Court is saying. I am going to through it and discovery is open, but not against the party seeking discovery, i mean seeking immunity. I understand your point about the government, the president s personal capacity lawyers attending the deposition, but there is no discovery order against the actual party seeking immunity. I cant find any case like that, when you had no one reasonable delay in this discovery against a Different Party implicates the interests of the party seeking immunity, the court is saying im going to roll, on we can say there has been a de facto denial this is going to be on all, fours not even on all fours but i am troubled by the fact that it seems to me that for us to say that there has been a denial in the face of the District Court, saying im getting to this is a difficult lift, and we dont have the thing that makes other courts rely on that. We dont have an unreasonable delay or discovery against the party seeking immunity so im sort of troubled by with how we fill that gap. Let me see if i understand, this generally as a matter of litigation works its not just the position whether or not but discovery requests. Of course you could try to monday must that. Discovery lawyer right . You wouldnt have to have a president do a deposition you could, come into court get some relief. The problem with that point is our immunity defenses, case is a very clear about if okay if it was a decision about, immunity could appeal that in your long report again, respectfully i dont think its not heavy in the if the district saying im going to roll on immunity at this point, i need more information its still sufficient to constitute the effect of denial of immunity. I will rule on immunity eventually but then the initiation of pretrial procedures we said no in the also are a case, in that case to what question you raised. Because you have the bank court here now and we can change that and weeks say that no 2 11 to four. But this is absolute immunity so i think that is sufficient, was their any case that says . That foreign off i may not have a case for that part i dont, i dont think everyone i think agrees absolute immunity is immunity from there is another interest that you can recognize that there may be some limited discovery to, make an immunity ruling, but the discovery in this case was not opened up, it was just the opposite it was not limited to the immunity, and the immunity was putting hot put on hold sort of speak, and the Court Ordered discovery to go ahead, under the Six Month Program in which, itself violates the immunity, correct and it seems to me its more of an effective real denial, when you order discovery and not Discovery Limited to the immunity limited to discover which you have to attend and participated or forego your rights on in the case and this is all the same case the suit against the president and the official capacity, its a single suit and the discovery may be limited to certain issues, but it was not limited to immunity. And it seems to me that when the court orders a program a discovery it is denying absolute immunity, which covers discovery. I think that has to be ride otherwise the, virtue of immunity recognition by this court and Supreme Court has to be disposed of on the outset doesnt that ignore the distinction between the two capacities here which the Supreme Court has also recognized . So why would i assume if discovery was ordered against the president in one capacity, it comes against him in another capacity . Does the Supreme Court, this court weve, always recognize the difference. Well the, recognition of different capacities doesnt answer any questions, even if you use it as an individual capacity as a separate as being subjected to a pretrial,s thats the holding an ashcroft they were proposing not to do with any discovery, in eighth a, they against entire parties in that case, so if that case even discovery is succeeds against other parties still you they have immunity to accept you have two different cases, one in the president s official capacity, one in his individual capacity, and if this individual capacity lawsuit has been dismissed or never brought, he still wouldve had discovered in that official capacity so im not exactly sure in matters that the immunity hasnt issued addressed if you are only concerned about this discovery thats not necessarily correct. The president s name john individual fastidious excessive in the hurricane of the castle in the preparations of the parties litigation. Have different rights and third parties. As they pointed out thirdparty discover in this case has to do with a number of corporate organizations, to probably have here is we are party to this action weve, asserted in a very timely fashion our rifle admitted it, we are entitled to the termination of immunity for retail proceedings, is cover even against other parties, even against the same party, in a different, capacity. I dont think theres any room, to quit with that point. To raise a question, that we talk about a lot, in the previous case, what is it that you want from us . In this, case i think the court clearly has jurisdiction and as to. I know what you think about, that what you want to order to be . I think that the court is obligated to address article standing, i think that you have to at least at a minimum have to reach and you outstanding, you obviously think there is no standing there is a recent. You want the case to be dismissed, dont you . That is correct. On immunity grounds, what the other issues weve identified that are sufficiently. So we have no jurisdiction but we dismiss . You will get the real if you . On. If you have no jurisdiction, i guess it depends, in this case, we want the case to be discussed in a way that assures that are right to immunity is vindicated. The result will be the same. While there was all may not be the same, depending on what the basis for dismissal is of, it may have conclusive effects, it may have additional effects, and we have benefits for the president s determination immunity. Nobody forced the plaintiffs to add to this, point it is so under their own free will, we assert our defense, we want to determination of immunity to the way that we had not defacing the portable commission, again will be another effect of community. Counsel, buttigieg monsters questioned, the order of decision, if we determine we had jurisdiction, you suggested we would must first go to article three, maybe not go to absolute immunity or is that necessarily have to come behind our question . Did the steele cohen discourse decision in it makes it pretty clear that article three jurisdiction is a freshman question, the court always has to own the pro jurisdiction, in the action of the district or, below and of this it makes it clear that you have to satisfy yourself, article three door 16 first, the court then, could proceed to the immunity case, although we think that both the, cause of action question, the merit question or sufficiently intertwined with that, the court has several options available, but i think the order, sets out is jurisdictional questions have come first, to that case we have to go to, article three standing. Obviously, even theres a lot of talk about the fact of royal 41, the court being satisfied on that point, i think this course decisions both before and sense, including the decision to support our by the time we notice of appeal, by the doctoring of the case in this court, we were District Court was divested of any for their ability to exercise your station, including infected especially action. It is a panel pointed, out created all sorts of opportunity for mischief, it will be inconsistent with federal rules of procedure to permit a party who was unhappy with the way in which the appeal is proceeding, to go back to District Court, undisclosed the appeal at that point. I dont think the public suits in this, Court Hearing on the cases, putting the energy case, do the suggestion that, not the standing vestager station in this court, the row 40, one a one, day want dismissal was be back in the district. Court i, do i guess, i would like you to address a concern i have it does seem as though, its an odd posture, because no one is actually advancing this claim, at this point, so why isnt it a little bit more advisory for us to reach it . I dont think its advisory, dont think its not correct they are not advancing, they fired three, theyre protesting argument they are not satisfied with exception the dismissal without prejudice, if they had proposed to dismiss the case with prejudice, they would no doubt have much harder argument, but we would at least have certainty upon the precedent that they are not being to be subject to sued by these, particular more certainty brexit decision of the port. We have no certainly there will not be pursued by others case is it a power. Actually goes further than that, the argument for the panel, if i can recall directly, the Opposing Side indicated, that they did want it without prejudice, and did not want to give up the right, they were reserving that right. Their procedures are under the federal rules, to effectuate dismissal, they do not allow for the funeral this missile by the appellate in any instance, of course we have not been approached it all, with respect to on what terms they are willing to stipulate, and he gets pretty clear, there right, so we subject to further action dismissing over the case the time being, no bringing him back in a later date is, just as troublesome as anything to do with the discovery process. The court recognized, but you think of standing question, should be decided basically on the same grounds, i do think that there is no parents standing respect of rising against the federal government, i think the competitor injury standing is overly speculative so, requirements of imminent, regrettable, even a repetitive this cases have been post, and the interest that was sort of below, is very difficult it doesnt, rise to the level of concrete, i also think that, immunity is sufficient basis on which to dismiss us, as it was made clear, the loss against president in this case, only from his official status is present, only violate the cause as president , and therefore immunity would be appropriate, hours or my time illnesses further questions. Thank you counsel. Good morning your honors. On behalf of the district of columbia and maryland, we think that this court racks jurisdiction for two independent reasons, that so i want to focus my attention is warning. I would also like to address any other questions. They did not effectively deny the president s immunity claim. In fact, as members of this court, recognize, the District Court was very clear that it intended to rule on the motion, and i would like to read from, asha murray, before jurisdiction can be invoked out to the collateral order doctor, in the District Court must issue a quote fully concentrated decision, that constitutes a complete formal and final resolution of the, issue in other, words the course ruling must be the final word on the subject to dress, for that reason alone, this court blocks jurisdiction under the collateral order, second, the district of columbia, and maryland, file a sect you off executing a rule 41 a one a one, notice a voluntary dismissal, as this court and other courts have recognized, the filing of such a notice operates as a matter of unconditional right, on into the plaintiff, and may not be extinguished or circumscribe by an adversary for the court,. So if you had not filed your rule 41 notice, until right now, filed it during the course of argument, would that i believe it would ruin the case . That is the balancing struck the federal rules thats what this course decision at both ray mathews discussed, is that even when there has been an investment of resources, by the defendant, and by the court, rule 41 strikes the balance, its a clear right line rule, if a motion for Summary Judgment, or an answer has not been filed, then a rule 41 notice, is an absolute. So under your view, for instance, you could wait until after oral argument, by your rule 41, or make the case, you could even wait until after the opinions issued, but before the mandate issues, and still file them . Well, i think that is the logic of our position, thats obviously not what happened here, but also there is a whole line, it does take us there, what i would say to that, there is a whole line of cases, that talk about, what the appropriate thing to do, essentially to address the concern about, gamesmanship, is that if the party whose voluntarily, routes the case, cant get the benefit of a Lower Court Decision the equitable remedy, exists to address any sort of benefit they would get from that, and here there is no. There is no assurance because the dismissal complaints probably under the gamesmanship, of the party dismissing was fairly certain it was going to lose. So the party dismissing, knows its not going to get the benefit of the District Court decision in any event because the court of appeals, appears either from briefs or argument, to be unsympathetic to the position. So you just snatched the case at the 11th hour, the benefit of the District Court decision is immaterial to you, because youre not going to get the benefit, youre going to lose the benefit if theres a reversal at the appellate level, how is that any kind of safeguards against this sort of gamesmanship, with respect to rule 41, that you seem to be advancing. What this forecourt said, is it in that case, at the District Court level, there were concerns that the party had come in, there was a motion for preliminary injunction, there had been hearings, three days of hearings in the preliminary injunction motion, and the court was actually concerned that there was a fraud on the. Court of the party seeking the preliminary injunction, had misrepresented sayings to the court and what the court in that case said, is that it is especially tempting to force the plaintiff, to take its medicine, in a case like, this where the plaintiffs behavior has been so disassembling, if not downright largely learned, but our task is to apply the task, not improve upon, and so all of the rule 41 cases, contemplate the possibility, that a little again may use a role 41 notice a voluntary dismissal, in a way that leaves the court, and the other side feeling unsatisfied, with theyve nevertheless described it as an absolute, unconditional, self executing. Right to any of those cases actually did deal with the dismissal filed many cases on appeal . None of those cases are on all fours in the procedural posture. Isnt that the problem here, it makes sense i guess, that were the District Court has retained jurisdiction, to allow for that kind of liberal voluntary dismissal, but the case is now before us, and so why should we refer to a District Court dismissal one that cases properly before the Appellate Court while because, to, raisins the forest is that the whole, its not properly before this. Court it, is once the notice of appeal is filed the jurisdiction fast in the notice of appeal. Once is filed, in a court of appeals, the only thing that can happen in the District Court is an act in eight, of the appeal. In eight of the appeal. Undermining the appeal, is a different thing, the District Court wants to notice the appeal is filed, otherwise jurisdictions in the court of appeals, thats the law as i understand it. We had one of these things last year, there was a case called dominion. And they had the issue similar to yours but, there are, the court of the, District Court had stayed, and we sort of the issue because they tried to file the rule 41 thing after this day was imposed. We said was marked by the state obviously. We didnt have to deal with a thing, theyre getting off on something you dont need to get into, our dont have any idea where youre getting into. This i didnt understand that is your position, i thought that you thought there was no final order here. There is no basis for invoke shun, of the collateral. So if we have no final order, and no collateral order, we have no appeal order. Correct. So all this discussion, is, if we do, if theyre somehow is key jurisdiction here, then we look at these very interesting issues, and discuss them, but if we should conclude that there is not an appeal bill order we dismiss. That is correct. Thats where i thought you were at the beginning, youre talking about you need to decide standing, immunity all this stuff, we cant get there, unless there is a peaceable order. Cool, i said earlier, what are you doing, youre talking about all this other stuff about eating jurisdiction, on appeal, with a rule 41. And all these other issues. The question here, is whether you have a notice of appeal that was affected. And whether there is collateral order jurisdiction, if the answer is no, stop the jurisdiction, dismissal is what they call it. I agree judge king, i took the premise of judge lamars question to be that he disagreed with me, about the motion to dismiss the appeal, because he wrote a Panel Opinion saying that. I think that you have to be clear in your answer, the answers only go to the question if we do have jurisdiction, and then theyre all fair game, and very interesting, but if we dont have any jurisdiction here, that is all she wrote,. That is absolutely, right that is where i started, the first thing that the court has to decide, is whether it has jurisdiction. Can i ask you a question on that, lets go back to that basic, i think that fairly states are position as i understood, i think these are either hypotheticals, that we can get beyond, the main issue, one of the main issues, is whether, there was an effective denial, and you agree that jenkins, holds that we dont have to have an order, if the court effectively denied it, and my question to you, is this. When the District Court entered, was requested, several times, to address immunity, and then the District Court, which of course covers immunity from proceedings, participating in proceedings including discovery, pretrial proceedings including discovery. One the District Court and doesnt order, schedule discovery, in which the president s going to have to participate, if he is going to be seeing in the proceeding, is that not effectively denying the right, to be spared, the onus of participating in preach hero proceedings, including discovery . There are a few, a few points in there. All make, it i want to elaborate on all the details, the real question folks, is on the discovery order december 3rd the program for discovery, effectively, denied the president immunity because the order said you have to go ahead with discovery. Despite the president s assertion of immunity which cupboard discovery. I dont agree, that the discovery order in this case constituted in effect of denial i will be happy to elaborate on that. Thats a whole issue on your appeal, you agreed earlier you argued there is no order, to be a few peeled from and shakens recognize is that you dont have to have an explicit order to deny you can effectively deny, and my question to you, is that december three order, ordering Discovery Program, six months Discovery Program without addressing the immunity, isnt that in effect of denial immunity, that was my question. And the reason that i wanted to start with jenkins is that i dont agree that jenkins chance for the proposition that you can have no order. In jenkins, the court tonight, a motion to dismiss in which summary qualified immunity had been raised, the District Court ruled on that motion, denied the motion, and, said i will address the immunity claim a Summary Judgment, there was. Thats the same thing happening here, this court said three times, i want to address it later, are going to address it later, it was raised, it was raised in april, and in april the court said we are not going to hear it or not even going to allow you to be president here on june 11th. And then on june 11th the court says, ill address humidity later and then on july 25th does all do a separate opinion and then on august 15th, the president said, would you please rule on the immunity, at the earliest convenience. The court didnt do anything. And then on december 3rd, the president said again will you roll on my immunity. Instead of recognizing on the community a promise to reach it, which effectively denies the Community Discovery is protected by immunity. Well, the discovery order, was only open against the president , and his official capacity. That doesnt make a difference, does it, he has to attend the depositions regardless. I dont think he has to attend the depositions. Is that what youve councils in a lawsuit you are quite is next to a ten depositions, come on. Honestly, i think that if we had an immunity claim that we believe needed to be addressed, there are a number of things that i would counsel my client to do. Sit back in the living room at watch Football Games while litigation builds on. Observe the objections to decide whether or not to attend the depositions, there is no question that the defendant could have done that here. And if he had, the result would be, this court, if it believed to the standard was met. You just want to keep the litigation grinding on, and on, and on, let the District Court habit for 18 months, for a couple of years court of appeals doesnt have jurisdiction on the collateral or doctored immunity the discovery takes place, and theres been no ruling on the immunity until lengthy discovery takes place and the gist of it all is, that the president is tied up in court with litigation that just the purpose of it, and the purpose of the students just have the litigation, to go on anand and on, and avoid any kind of resolution, that seems to me, i wonder what the implications, of handing the litigation just grown don, with a resolution, what are the implications of that, for separation of powers. And for the potential, not just of this, but of many many other suits. To simply tied down the presidency, and the executive branch of government, to a greater extent, that it has been, impeded before because thats the end, of it just keep litigating isnt it . I think you can answer the question, yes or no the first part. I couldnt guess what your answer would. Be there are a number of questions, begin to that question, certainly our intent is not to tie up the president in litigation, in fact we have tried to dismiss the independent capacity funded from this lawsuit were also not taking the position, that if discovery had gone forward, and we had noticed the deposition of the president , that he would have no effective relief, either from an affective denial, or through, here, where the District Court, evidence in intent to roll, was working through the issues in the space, and there is no order, from which to appeal, we believe that this court should, at a minimum, we believe that this court does not have jurisdiction, and we believe that even if this court does have jurisdiction, that the appropriate thing to do, is to send it back to the District Court. If the president is denied a right to appeal on to the collateral order doctrine, are the long implications of that, that the president is going to be tied up in litigation, without a court of appeals ever being able to review it. What it does, is once again, happy executive branch in government, fiber to your interpretation of the collateral order of doctrine, have the executive branch of government, tied up, for an indefinite period of time. Without seek recourse in the court of appeals, for something for a, litigation than maybe truly off the rails, and thats, you know thats really whats an issue here we can debate the pros and cons of this wrinkle, and that wrinkle of the collateral order doctrine, but the long effective this, is whether we are saying this this whole business of debilitating role would litigation, that offends the most basic separation of power principles, if we can just keep the executive dangling. So, we dont believe that is this case, and we certainly dont believe that the court needs to go that far in this case and interpreting, or deciding whether there was an effective denial, and even if there was an effective denial, whether this court will then reach out and reach out and decide and immunity question is the case that we dont intend to litigate. If you said you dont engage intend to litigated, we dont want to litigate it will dismiss it with prejudice, i will venture your colleague on the other side of the aisle will be readily prepare to dismiss the appeal, but you have said and i have even repeated today that you are reserving the rights to file it again, and is that what this is all about . Is there some game game gamesmanship going on here . I dont believe there and there is gamesmanship . All they have to say is there ought to be dismissed for lack of jurisdiction, any of these other issues are for the district. Court to the judge kings point, jurisdiction and the comments of the game and ship thats what we face here all the time in cases that come up, well may have another i dont know what your motive is, im not going to impugn that to you, we have a legal issue, we are not the news channels, we are not the political folks are theyre arguing about this cases we are a court of law. We need to decide the legal issues in this case, and forget about the questions whats gonna happen is, the world gonna turn upside down if we dont . Is the present gonna have to work too hard is it gonna have to give up . There is a clear legal issue before us, and if it does go there there remedy is, they can address these concerns. But this is time not the time to do. It we dont do it in allegations we dont do it here either. I agree judge win and, for the reasons it ive explained we dont believe that this court has upheld lecherous diction, and that the appeals should be dismissed. Thank you thank you this court unquestionably does have Appellate Jurisdiction over the case the case is not moot and the arguments are being pressed the, president has asked for a very being of this case, plaintiffs are unwilling to give him anything close to the release he is seeking. On the effective denial point i want to make some clear is very clear, the notice of appeal that included a notice of appeal at the order of opening discovery. We do have an order filed, its not just simply a notice of appeal on the docket anti to any actions by the District Court. I also dont think, i mean i think the court has to grapple with the question that it actually requires something as explicit as whats happening in jenkins, against thats not whats more explicit than whats here, im going to rule later its not much different than i am going to issue my decision at a later point in time. Takeover discovering the official capacity cases well, im sorry you want is to take over discovery as. Well i think that subjecting the president . We arent, we are talking about the law in terms of discovery, thats nominate this District Court manages dont . They forcing the president should be subject to pretrial procedures including discovery, is an effective denial of his reiter immunity it couldve been or more clear on that. But you said an official capacity also extended to discovery, thats what you are trying to say its more than just the individual we included also the question of stopping discovery even if it is the end of its capacity arent you just saying that . Did you say that . Im not sure, i said that the opening of discovery against any party, in any way shape or form, constitutes a denial of but you said you, also included, the aspect of discovery, in the official capacity, youre asking us for a ruling on 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 maybe i misunderstood. But i thought thats what she said. Im not sure what i said so let me rephrase. Wants to