Transcripts For CSPAN3 Fourth Circuit Emoluments Oral Arguments 20240713

The District Court committed multiple fundamental errors in refusing to dismiss this suit and plaintiffs can i ask you to speak up just a little bit . Bring the microphone a little closer, if you can. And the plaintiffs are fundamentally mistaken in asserting that this court is powerless to correct any of those errors at this time. Now, we have identified two different paths through which this court can have mandamus relief. The Supreme Court made clear that separation of powers considerations are of utmost important when considering mandamus petitions involving the president of the United States. For example, the court quoted chief Justice Marshall to say that in no case would a court be required to proceed against the president as it would against a private individual. And moreover, the court said that the high respect that is due the office of the president must be considered throughout the entire proceeding. Now, what does that imply in this case . It implies the following. Their position is that even if the District Courter erred in refusing to dismiss the seat, if every judge on this court agreed it was error to refuse to dismiss the suit, their position is that this court is still powerless to do anything about it, that the president must go through District Court litigation, be subjected to discovery into his personal finances, into the official acts of his administration. And only at the end of all of that can he take an appeal from a final judgment which will promptly be dismissed. Counsel, i thought that 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 mandamus relief. Is that not so . That is correct, your honor. Okay. So it is not that they are saying that you havent met that. Its you having to demonstrate to us that you have met that, right . Youre part right and part not right, your honor. It is true we have the burden to show clear and indisputable right. Their position, however, is even if the District Court was clearly and indisputably wrong, if every judge in the world would agree that he should dismiss the suit, their position is that we still cant get ap appellate relief. Youre skipping a i think we have to talk about your burden. You would agree with me that mandamus is extraordinary relief. It is, your honor. Go to demonstrating that youre entitled to this extraordinary relief. Absolute. What i wanted to say at the outset is we have two means of showing mandamus. Let me interject there. While youre doing that, why dont you distinguish as you see it this case from what the d. C. Circuit did in a similar setting where they sent it back, as i understand it. Ill answer both questions at the same time, your honor. I dont actually think there is a material distinction between what the d. C. Circuit did and what youre asking this court to do in the following sense. The d. C. Circuit said the District Court had clearly abused its discretion in refusing to grant 1292 b certification without deciding whether it can grant mandamus, it remanded and told the District Court kwhwhy dont you reconsider. With all respect, i dont think that is a material distinction between just ordering the court to say you have clearly erred, you should grant certification and telling a lower court you have clearly erred. There is a big difference in granting mandamus relief. Thats why the question is welltaken. So thats why im sorry to persist in this. Maybe you can explain to us why you meet the three requirements for getting mandamus relief here. Agalet me say one last thing about that and then ill turn to that because theyre related. The reason why i dont think theres a difference is because when you tell a District Court they have clearly abused their discretion and why dont you reconsider, only two things are going to happen. A reasonable District Court will of course follow the courts instruction and basically grant the certification. A totally intransigent District Court will thumb its nose at the court of appeals. You need more of a clear abuse of discretion to get mandamus relief. You recognize that, dont you . Thats the first prong. Clear and indisputable right is different than an abuse of discretion. Than an abuse of discretion, but not a clear abuse of discretion. If you look at cheney, it is expressed and i can read you the quote. The first step that you have to demonstrate is a clear and indisputable right. So what is that clear and indisputable right . You must think you have one. We have two different theories. Id like to hear one. If you could answer along with that what was the District Court legally required to do that it did not do . What did it have to do that was not done in this case . I think our simplest explanation to all of those three questions, is we think it is clear and indisputable that you cannot sue the president of the United States in his official capacity without at a minimum having an express statement authorizing such a suit by congress. We think that is clear and indisputable because the Supreme Court has thrice hold exactly that. I think thats your gloss on what the courts held, but we know from current litigation involving similar issues that several courts have allowed suits against the president to proceed. So how can it be clear and indisputable . With all due respect, your honor, if lower courts are flouting Supreme Court precedent, that does not change the fact that Supreme Court precedent is clear and indisputable. The question in franklin was whether the president was subject to the administrative procedures act. The administrative procedures act covers agencies and it defined agency as any authority of the government of the United States. What the Supreme Court said is that language didnt expressly include the president , but nor did it expressly exclude the president. It therefore reasoned that in light of the separation of powers and the unique constitutional role of the president , textural silence was not enough and you needed an explicit could i go back to the standard here . You said there was a clear legal error. Is it your view that mandamus should issue if a court thinks theres a clear error . Because thats the standard we review when were reviewing factual findings. I dont think anyone believes we should grant mandamus on that ground. I think youre taking that out of context from cheney. I know the quote youre talking about but its in a paragraph that talks about how this is an incredibly drastic remedy, how its been traditionally used onld only to ensure that District Court has not usurped gross authority, gone outside its jurisdiction. I think saying clear error is not really the equivalent to what were talking about now. We think any of the formulations equally apply when you have a suit that is against the president of the United States that is categorically foreclosed by Supreme Court precedent. Let me point your honor to this courts precedent. If a lawsuit is filed in federal District Court that should have been before a federal agency, that is the sort of clear usu usurpation that warrants mandamus review. As i understand your position, you are a clear and indisputable right in this case because the judiciary is seeking to assert over the presidency of the United States authority that has never been asserted or claimed before. That is absolutely right, your honor. The point i was trying to make about s an agency that is merely exercising the president s executive power, then surely it is a clear usurpation of jurisdiction. You referred to franklin versus massachusetts and cited it, i think, accurately. That left open the possibility of a suit against the president for a ministerial act and theres other cases, the clinton versus new york and the d. C. Circuit case against president nixon. If you could address whether you think the relief being sought is ministerial or discretionary, id appreciate your position on that. Two points about that. First, i dont think this is ministerial within the meaning of those cases. I think in fact their argument that it is is making the precise error that the Supreme Court in mississippi versus johnson rejected. In that case the plaintiff there tried to say that the president it was ministerial because the president , of course, could not act unconstitutionally. The challenge was that certain reconstruction acts were unconstitutional. The Supreme Court said no, that is not what ministerial means. The question is whether theres any discretion. If theres a reasonable dispute as to whether this act is unconstitutional, that is not ministerial, its executive. The second point is that question is a question about whether it would be constitutional to allow a suit against the president. Theres an antecedent step that i think is very important. At a minimum congress should have to expressly authorize such a suit. Congress should have to say that the president can be sued for ministerial acts. Thats the clear statement in franklin. Its the point of the clear statement requirement in nixon versus fitzgerald. Why would this court construe an implied cause of action in equity for the first time in this nations history to present serious constitutional questions. This court avoids constitutional questions. That follows also just from basic principles of equity. Theyre relying on the traditional common law equity power to enjoin federal officials. There are two things about that. They cant assert such a history with respect to the president. Its always been lower federal officials. And second we know from cases that the scope of the traditional remedies has to be informed by history. The whole point of the Supreme Courts decision in groupo mexicano is if youre trying to extend a traditional remedy, that has to be done by congress because of separation of powers principles. If thats true where the dispute was over wherever prejudgment or post judgment credits could file a suit were treating this as if its some ordinary run of the mill case. It is not that. The judiciary is asserting injunctive power over the president of the United States and not only is it asserting that power, but its asserting it in an unprecedented way, because you can understand the role of the judiciary in a case like United States versus nixon where the courts were aiding in the enforcement of a judicial subpoena in a criminal action, and you can understand cases where the courts have stepped in to vindicate rights that have been infringed by government. But this is neither of those. Theres no direct the government is not acting directly against any individual. And were not confronted here with enforcement of a judicial subpoena in a criminal action. Whats being asked here is just wholly unprecedented, which is that we are to create a cause of action on our own under this emoluments clause. We have no history to guide us. We have no precedent to guide us, no right has been conferred or created by this clause and no remedy has been spelled out. And in the face of all of those things, we are to proceed alone to tie down the presidency in litigation. That is an excellent summary of our argument. All i can say in addition to amplify it theres no question there. Could he answer my question . I didnt hear a question, judge. Im sorry. If you heard a question, please answer it. I think what i would say is if all of that is not enough to warrant mandamus relief, im hard pressed to see how this court could say merely treading on jurisdiction is enough to warrant mandamus review. Whats the answer to the question . I understand what he said. You said you agree with it. What is the answer to the question . That this is exactly the sort of extraordinary usurpation of jurisdiction that warrants mandamus relief. There is no Historical Authority to sue the president , no Historical Authority to have a cause of action to enforce the emoluments clause against anyone. To do all of this and not even allow a interlocutory appeal the question goes beyond whether or not this is something the president would challenge separation of power. It really goes to the question of is he above the law and the allegations here are really essentially sk lly discovery be sought from third parties, primarily businesses. In order to tie that in, youve got to tie him in so ultimately you say whatever the president does puts him above the law and out of the reach of being able to deal with issues that may be squirrely there. Let me ask a more fundamental question because you started your argument out to the effect that they say you cant even be here, which before you even Start Talking about mandamus, you have to look to determine is mandamus available in the instance where a District Court has given a denial of certification. And its clear that i dont know of another case thats done it in this fashion. If you want to talk about something thats never happened before, the ten circuits that dealt with, nobody has said a District Court can be taken over by the Appellate Court. The Appellate Court cannot usurp pou power. It really comes down to a congressional word. Let me finish president in the incidence of the District Court seeing denial of certification in that particular instance, theres really no precedent for whats happening here today. Thats not true, your honor. Theres one circuit. You would have to agree that the weight of authority is against you on that point. Let me finish. My word is precedent. Theres no precedent for this. There may be another circuit but the weight of authority goes entirely the other way. Let me say a couple of things about the weight of authority. First, as judge motz recognized there is one circuit thats done exactly what we said which is the 11th scircuit where they directed a District Court to certify. Their distinction of that case is the District Court there hadnt yet ruled on the certification motion. It directed it without even giving the District Court the chance to totally screw up which is what the District Court did here. They said that the District Court clearly abused its discretion and they remanded for the District Court to reconsider. Now, i have a hard time understanding how any honest, reasonable District Court judge in the face of that sort of order would do anything other than what judge sullivan in d. C. Did, which is promptly turn around and certify. The only difference between that and this is a completely intransigent judge who could careless that a panel of this court said he abused his discretion. Promptly turned around and certify. Yes. That wasnt done here. The panel said how do we know that . The District Court can thumb its nose at this court. Do you have any case where a court of appeals has used man day n mandamus as a vehicle to grant relief, to grant the substantive relief of ordering a District Court to dismiss a case. This courts decision in sewell. The court in this case went through all the hoops, it did everything it needed to do in order to consider the issue of certification. The case was properly before the District Court. It wasnt a question that it should have been in another form. Our point is that it should be in no forum. Its af this Court Granted mandamus to say the case should go to an agency. To use the vehicle of mandamus to decide an issue because it disagrees with what the District Court did. I agree that it has to be a clear and indisputable legal violation. How did the court usurp its authority . If a District Court takes jurisdiction over a case that belongs in front of an administrative agency, thats usurping the executive agencys jurisdiction. Can we point to any case where the judiciary has asserted the power to enjoin the president of the United States in the exercise of his official duties . You can call it ministerial, you can call it discretionary. But what precedent is there for the courts to step in and enjoy the president in the exercise of his official duties and where is the limiting principle to that . The only case that i am aware of that has done such a thing and considering it and holding it at the appellate level is the 1976 case in the District Court. The times the Supreme Court has considered this issue of whether you can have a suit against the president for his official action, three times its come up and three times the Supreme Court has rejecting it. In mississippi versus johnson they said it was legal. In another they said at a minimum congress had to speak clearly. I think it is absolutely the case that if this court can protect an executive agencys that question sort of raises the issue of redressability and the appropriate scope of any remedy against the president. But youre making an assumption that that would be the actual remedy, an injunction against the president. The Second Circuit set out a number of remedies including not against the president but the Business Hotel itself or third parties who might be paying for services. That would not result in an injunction against the president. I dont think the prinits lo injunctions. If this case goes that far and were a bit far afield here but its not necessarily the case that any remedy would result in a direct injunction against the president. That may be true. To emphasize, the point that i made, it doesnt matter what the precise form of relief is, whether its injunction or declaration or anything else, the point is absent a clear statement from Congress None of that can run. What is the remedy for a violation that you allege. The first question before you get to a remedy is whether you have the right to sue in the first place. If you deny the fact that there is no judicial remedy, what remedy is there to control a president who might be above the law . At the very first step congress could presumably authorize someone to actually sue for an emoluments clause and then we could have a conversation about whether that lawsuit is permissible. But congress has not even done that. At a bare minimum the separation of powers say this court should not allow a suit to proceed against the president of the United States where congress hasnt even bothered to authorize the suit in the first place. The emolument 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 . Its an interesting question, your honor. I havent thought about it. Youre saying categorically thats an unprecedented suit. You said congress hasnt provided a remedy for it and you suggested Congress Congress would be the one acting against the president s rights. Wouldnt the courts be the place that hed have to seek remedy . I will say the same exact thing that i said throughout. The question would be is that suit authorized. Is there jurisdiction, is there a cause of action. I dont know the answer to those questions. I know there are a lot of federal statutes that govern whether you can challenge the pay of a federal employee. Even the judges themselves were able to go to the court to question their compensation. That very well might be the case. There very well might be a cause of action. There are cases involving constitutional provisions outside the bill of rights that have been held to be nonjusticiable. The guaranty clause, the eligibility clause, the incompatibility clause, the impeachment clause, the receipts clause. So there could be socalled infringements to all these clauses, but there are many, many clauses that are structural or at least outside the bill of rights that the Supreme Court has held to be nonjusticiable. Thats true, your honor but we dont have to go anywhere near that far to say that at a minimum before you can have a lawsuit over it, maybe congress should have to authorize such a suit. Judge motz, if you could make the point about the body of case law. Even their best cases, even ford recognized that there has to be some safety valve if a District Court clearly abuses its discretion. The Court Assumed for the sake of argument that there might be a way to direct mandamus in a situation like this. It talked about improper motive, i dpreegregious situations. That is not the language in cheney. So you dont think you have to have a clear and indisputable right . Its not like mandamus is limited to legal errors. Is the standard youre looking for the one you used before, totally screwed it up, is that the way you described the District Court opinion here . What i saw was a very reasoned exercise of discretion on this interlocutory opinion question. I understand that you have a good faith disagreement and there is room to debate these issues. But the idea that we are some kind of a roving commission where were going to grant a petition for mandamus if someone can convince us that the District Court totally screwed up their case seems to open the door wide. In re sewell did exactly that. That is your position, the president cannot be sued anywhere . Without an express authorization by congress, he certainly 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 . Tell me whats official about that. Two things. First is i think that question is probably best directed to plaintiffs because theyve sued him in his official capacity. Well im asking you. The reason why i think theyve sued him in his official capacity is the emoluments clause imposes an obligation on him by virtue of his office. It requires any officer covered by the emoluments clause to not accept prohibited emoluments. If these are prohibited emoluments it is by virtue of his office that he cant accept these payments. So it is true that it involves his private Financial Behavior, but the only reason his private Financial Behavior is subject to suit is because he holds his office nap office. Thats why its an official duty and thats why they sued him in his official capacity. You do have a clear and indisputable right when the suit is under a claus that confers no right. The emoluments clause confers no right upon anyone and yet we still have a suit against the president under a clause that confers no right and provides no remedy. I say once again this is an overextension of judicial supremacy over the office of the presidency. Its unprecedented that we would have something that is not in a provision that is not in the bill rigof rights whether there no direct evidence that the president has directly harmed anyone and that a suit is generated essentially were up here making it up. Were winging it. Theres no history that authorizes it. Theres no precedent that authorizes it. Theres no right conferred that authorizes it. Theres no remedy set forth that authorizes it. We are winging it. The novelty of this, if this isnt off the rails, then i dont know what is. There are other suits involving congressional subpoenas and everything that presents closer questions. But this one is a lemon. Its the weakest of the cases that are springing up against the presidency in this environment. Others may have greater merits and i hold no brief for the conduct of this president or of any president , but what i do care about is the future of the judiciary and whether we should be asserting an authority with such a slight and unprecedented foundation as is contended here. Your honor, i agree. I think that under cheney it would make a mockery of the respect that is due the high office of the president which must be considered at every stage of the proceedings. Thats what cheney said. Theres no precedent because no president has done this. Essentially what youre saying, i understand, is that we have an emoluments clause. No doubt about it, thats the law. You can have a hotel that competitively operates against state interest here. You can have interest in which you can invite foreign dignitaries openly to come in and take 500 rooms or to offer maralago. You can do all of these things but at the end of the day youre saying there is nothing you can do about a president. Your position is nothing can be done . Is that correct . Congress authorizes my question is, is that correct, nothing can be done to remedy a president who openly and without any reservation violates the emoluments clause, nothing can be done because the words would be he is above that law, is that correct . No, it is not correct. It is a law . As law stands right now just to amend what the judge is saying, no new action by congress, is there anything that can be done . Not in the judicial remedy and that does not make him above the law. That is what cheney and nixon versus fitzgerald how about in this situation where we know that the president holds personal disdain for the emoluments clauses . He said they are phony emoluments clauses. He said there are phony emoluments clauses. And the president takes an oath to protect, preserve and defend the constitution. He characterizes them as phony emoluments clauses. Whats the relevancy of that . I think any fair characterization of what he said he called them phony emoluments clauses. I understand. Two clauses of the constitution written in 1787 at philadelphia, not in the bill of rights, theyve never been amended. And no one is disputing the emoluments clauses exist and no one is disputing that theyre important. I think any fair characterization of what the president is saying is these claims are phony because these claims are utterly without merit. Im happy to get into the merits. With respect to the d. C. Circuit case, was that an erroneous decision or simply an alternative form of relief . I think that was a permissible exercise of their discretion. I think they could have gone what were directly asking this court to do here. If thats permissible, then there wasnt a clear and indisputable right to mandamus relief. They denied it without prejudice, your honor. They gave the District Court a last chance to avoid thats your reading of it but they didnt grant mandamus relief. They said there was no error. They denied it without prejudice. I feel fairly confident if the District Court there had thumbed his nose at that panel, i think we would have had a pretty good chance at getting mandamus review. Then the question you have to ask yourself is why, why would you construe a federal statute to put Appellate Courts and District Courts in that position where an Appellate Court can tell the District Court it clearly abuses its discretion and hope a District Court doesnt thumb its nose at it. My friend judge keenum had a question. You still havent told us what action was the District Court legally required to take . The thing throughout your argument is the District Court was wrong because there isnt a cause of action. There are two things i think it was clearly legally required to do or at least clearly abused its discretion in doing. One, we think that it should have outright dismissed the suit for a multitude of reasons. So you disagree with what the District Court did. How is that usurping his authority . I hate to repeat myself but for the same reason that it was usurpation of authority in sewell for a District Court to retain jurisdiction. Do you have any other authority . I think judge keenan has pointed out to you what might be a distinguishable factor between this case in sewell. In the ford case when presented with this fact pattern, what do you then when a District Court obviously should have certified, it might be a possibility that what you would do is actually just mandamus, the straight out denial of the motion to dismiss. So i agree its not a holding but even their cases recognize that. I think theres a good reason for that. Imagine a simple hypothetical which isnt even a hypothetical. Its the facts of the fifth circuit case. Imagine you had a District Court that said the following. I know that circuit precedent requires dismissing the suit. I dont care. That is not what the District Court did here. You might not agree with it but its no slap dash their proposition of law, what they are saying is that even on my hypothetical, no relief. Even if a District Court flouts circuit precedent and says im not following it, i dont care youre turning the argument on its head. Youre saying no matter what the District Court did, youre entitled to mandamus relief. Ill say it again. If this was a reasonable conclusion, if reasonable judges could disagree, then i agree we dont get mandamus. You have to have a clear and indisputable right, not just reasonable. For many of the reasons ive said i think it is clear and ini indisputable. This goes so far beyond previous exercises of Judicial Authority and the suit has such a Shallow Foundation that there is a clear and indisputable right to have the case dismissed. Thats right, your honor. Are you familiar with the shlaggenoff case. The court there authorized and defined a writ of mandamus similar to in cheney. It said the writ is appropriately issued when there is a usurpation of power or a clear abuse of discretion. Your argument, as i understand it, is both that there was a usurpation of power by the District Court in taking con y cognizance of these cases and refusing to recertify when a District Court said there was no disagreement about its conclusion in this case. It basically said it was right and no one can disagree with me. To circle back to judge keenans question because youve asked what do i think the clear error here was. Its the two pieces that judge niemeyer just said. We think it was clearly an abuse of discretion to not have said that these questions are substantial enough to warrant interlocutory appeal. Virtually everything theyre arguing is totally unprecedented. Most of it is squarely in the teeth of Supreme Court precedent. To say thats not even a substantial legal question that warrants interlocutory appellate review in a case where its the president where the Supreme Court has said repeatedly that respect for the office must be considered at every stage of the proceedings including mandamus. The idea that he cant even get an immediate appeal the District Court in confronting this issue basically postponed the immunity question which were going to address next in order to prevent appeal. In connection with the certification basically answered the core question is there a substantial ground for a difference of opinion on this. And the court said no even though the courts decision had zero precedent to support it. It had less than zero precedent to support it because on standing it was squarely in the teeth of the only other case that addressed the issue. The District Court in sdny agreed with us there was no standing. Thats the only case it had available at the time and it basically still said theres no reasonable ground for disagreement. Now of course obviously on appeal the Second Circuit reversed that and this Court Reversed it. Now we have duelling court decisions. The idea that anyone could say in a suit against the president that thats not a substantial legal question that warrants interlocutory review d. C. Circuit saying that the failure to certify in a very similar context was a clear abuse of discretion. Clear abuse of discretion, your honor, thats right. I understand thats not this case. I understand im saying a hypothetical but the fact of the matter is their legal position would mean that even if a District Court just said im not applying circuit precedent, the Supreme Court will vindicate me. Certification is denied. Their position is nothing this court can do about it. Tell me what do you say of those official duties that would be impaired what would be the president s official duties being impaired . In terms of the relief, its imposing restrictions whether its through declaration or injunctive relief because he holds office. Lets not skip the relief. Tell me if there was relief, what duties would be impaired. What official duties by the president would be impaired. What difference would it make the president in terms of how he performed his duty if he got the relief here . What official duties would be impaired by the president if the requested relief was granted here . Your honor, i will say it again. Theres nothing more i can say so if you dont find it persuasive youre penalizing him for Holding Office by making him divest his assets. If thats not a penalty on his official action if someone told you you could no longer be a federal judge unless you gave up all your money, i think people would think that is impairing your official actions. Id be happy to hear what relief theyre asking. Its not at all clear. Injunctive relief, if you cant do it, just dont do that anymore, not going to worry about what youve done, what duties are going to be impaired . I cant give you a better answer than what i already gave you. The other thing i do think is very important is you have to remember theres going to be litigation before we get to the relief. I have to go back to what you said to judge wynn about telling him he cant be a federal judge unless he gave up all his money is the issue here. Its not. Its telling him he cant use his federal judgeship to make money. Thats what were talking about. Fair enough. Thats still, i think, clearly an incursion on his official power. It is restricting his ability to engage in Financial Transactions the presidency to make money. To be totally clear thats not an accurate description of the facts. Im just saying what you said to judge wynn is not accurate. Thats not, at least in my view fair enough, your honor. Whatever their fact theory is on what an emolument is, their point is because he holds office he cant engage in certain Financial Behavior. That is obviously an incursion on his power because its penalizing his behavior because he holds office. Counsel, thank you. Thank you, your honor. Good morning and may it please the court . I want to start this morning with why mandamus is not appropriate because i do believe thats dispositive of the case. If this court goes further to deny the request to mandamus dismissal because congress has standing and a cause of action to seek Equitable Relief against the president under the constitutions emoluments clauses and theyve adequately stated a claim that a president is receiving foreign and domestic emoluments through the trump hotel. Its a limited exception to the final judgment rule. When congress contemplated it thats similar to what we see in federal rule of civil procedure 23 f. Congress rejected that and rejected it at the recommendation of the judicial conference because this was proposed by the judicial conference. What they wanted was a rule that required the con kercur let me ask you about the d. C. Circuit case. They determined that the District Courts order in that case, orders, squarely met the criteria for certification and abused its discretion in not so certifying the case. So was that an erroneous decision by the d. C. Circuit and how is it different from this case . I do think it was erroneous in this way, judge. Because when the District Court has declined to certify, that is the first and last word on the matter. I dont believe so. But i think whats important about the d. C. Circuits decision is that it did not take jurisdiction. All it did was send it back to the District Court for reconsideration. If this court thinks that the d. C. Circuit got it correct, thats the most this court could do. The court did say that a failure to certify was an abuse of discretion. And if you look at1292b, it ha requirements and only one of which is a core requirement which is that there is a substantial ground for a difference of opinion. Of course, the other two has to be a controlling question of law, and nobody has disputed that, and it has to materially advance the litigation. But the core question is whether there is substantial ground for difference of opinion, and if the court finds that is so, then it must and not may, but it must certify, because the statute is mandatory. And so the notion that you say that the court can just look at this and say i choose not to do it is not on the table. 1292b does have structure. And in this case, the question was whether the District Court adequately addressed the question whether there was a substantial ground for a difference of opinion, and both the d. C. Circuit and the Panel Opinion in this case concluded that the District Courts misinterpreted that or misapplied that or ignored it. And therefore should have certified, and the d. C. Circuit told and suggested to have it sent back and certified and as you know it was certify and it is back up, and argued that last week in the d. C. Circuit, and here we basically said that we could send it back and have it come back up, which is sort of a Ministerial Task after we had found that they were wrongfully denied certification, and we just applied the certification. But the question is if you would wish us to follow the d. C. Practice, we have a petition for writ of mandamus before us, and we could say that, or we could, i mean, 1292b denial before us, and we could do exactly what the d. C. Circuit did and send it, ba and tell the district judge to certify. Is that what you want . Judge, there is a lot in the question, so i want to make sure that i address it. First, yes, i agree that 1292 has structure, and the court has to be of the opinion that it meets the criteria, and here the District Court in a thorough opinion went through each of the grounds and the four grounds advanced by the president for why the 1292 certification was appropriate and not of the opinion that they were controlling questions of law as to which there was a substantial ground of opinion that would materially advance the litigation. And as he noted and every Court Considering the question has agreed that all three need to be certified. How could the Court Address a lawsuit under the emoluments clause under which there is only one opinion in the country, the Southern District of new york and which went against what the District Court said, and say that there is no substantial ground for difference of opinion . It was creating the lawsuit out of whole cloth, and very arguments that mr. Poomoopan ma here is that the courts cannot create rights and on and on and yet no ground for difference of opinion . And everybody sort of shocked at that notion that you could make that finding especially when the only case on that point is against the district judge, and he still says it is no difference. Why cant that be an abuse of discretion . Well, the District Court acknowledged that there was the sdyn court case at the time. The back of the hand and he said with analysis that it is not applicable here, because it involved restaurants and private hotels other than the international hotel. And with respect judge niemeyer. There was no dispute between the District Court here, and the sdyn court. And so merely because of the difference of the law is applied to the facts and that is from the mcfarlane case that is cited in the president s ms. Aikhan, this is interesting conversation of the interlocutory and mandamus, but i am fearing that we are lost in the weeds. Before we start off on this journey, i wanted, i would like to have some idea of where we would end up, and whether there is even the slightest merit to this suit at all. A basic question that i have is where in all of this suit, where is congress . I have a feeling that congress has just been left on the back doorstep to just freeze in the cold. Theres no congressional subpoena here as there is in some of the other cases, and theres no congressionally created cause of action. If congress were concerned about the emoluments clause it could have an emoluments provision inserted as an article of impeachment. It could have passed a disclosure statute of some sort with respect to emoluments. It could have established a framework that would have given the president or whatever officeholder some idea of what an emolument even is, but what concerns me about this case is that congress is wholly absent from it. We are just proceeding on our own, on our own toot without a congressional subpoena, without a congressional cause of action, without any kind of action of any sort with respect to emoluments. The framers, judge wilkinson put in the constitution two provisions with the acceptance of emoluments and it is up to this court to inform and interpret the clauses. Congress to be sure has the ability to consent for the emoluments and it does have a you say interpret it. But you are asking us to sketch something off of a completely blank slate without any kind of congressional input at all. You know, in the steel seizure case, Justice Robert jackson counseled against a Single Branch of government charging head long into matters of the highest moment all by itself. Now, in that case, it obviously concerned the actions of the executive and how much more, and how much more true is that lesson in the case where the least accountable branch of government, and the least democratically accountable branch of government, the federal judiciary is charging off on its own without any backup or input from the legislative branch. Isnt that isnt that problematic . I have two responses so that, judge wilkinson. First, it is longstanding that the plaintiffs may seek injunctive relief to enforce specific constitutional provisions and that we know from armstrong and congress can take away, but not here. That is input of congress. And second the framework of the foreign gifts and declarations acts, and the legislature have informed the emoluments clauses well, no, many of the structures of the clauses are not selfexecuting, and it is crucial that the emoluments clause is not placed in the bill of rights, and it confers no rights. And i would say most of the provisions in the constitution outside of the bill of rights are not selfexecuting. It depends on something that congress has to do to get the ball rolling, if you will. And to say that we can do all of this on our own, we are coming to a position where the political differences, and theres a political overlay to this whole action, make no doubt, but our political differences are going to seeming to me to be increasingly resolved through litigation rather than through legislation and elections, and that is what you are asking us to do which is to really undertake an unprecedented assertion of the Judicial Authority and, as i say, we are coming to the point where elections and legislations are becoming relatively less important and judicially are becoming more important, and we are, again, acting on our own. How much would be so much firmer ground if we were acting in concert with congress or arm in arm with Congress Rather than just charging ahead on our own motion without any backup or foundation. Now, judge wilkinson, i think that the Supreme Court addressed this in Free Enterprise when it said as a general matter, you dont have to look at the constitutional provision by provision, and in bond, you can look at the 10th amendment questions, and so i dont believe it is limited to the bill of right, but it is longstanding that where a federal officer is acting ultra virus which the president is doing here accepting the emoluments despite two very clear constitutional provisions that Equitable Relief is able to enjoin that. So we are dating back to mcnulty and other cases where the courts have not hesitated to restrain unconstitutional action by federal officers. But none of those case, and we are stating the obvious, that none of them involve the presidency. And federal officers are state officers in general, and as i am reading the cases, all of those fall into one of two buckets. They fall into the either the bucket that there is an underlying cause of action which we dont have in the emoluments clauses, and two, they fall into the bucket of using litigation to address the defense to an enforcement action. So, all of those cases a, dont involve the president , and b, dont fall into the two buckets which this does not fall into, and when you are turning to the precedent that relates to the president , it seems to me that only the sliver of an argument is possibly the notion that there is some ministerial act here, but there is no Supreme Court case that says that squarely either. So to refer to the cases, we are really talking apples and oranges, arent we . Well, i dont think so. I have three responses. First, the d. C. Circuit has held in d. C. Versus swan, it is not acting as a bar of a proceeding against the president when there is the department of commerce or the lower federal official, you would expect that the relief brought against them, but nteu says form over substance where the president is immune simply because there is nobody else to sue. That is the d. C. Circuit case . Yes. And repeat it in swan versus clinton. And in the next action the Supreme Court was quite clear in armstrong that unless congress has taken away the ability to exercise equity jurisdiction, they can enjoin other actions. So those are the two strands of the comment, and the case law is squarely in our favor on that. And let me ask you a question here, that you said that there are two times that the constitution deals with emoluments, and there is three. Is it your position that the definition of the emolument in article 1, section 9 is the one that you are asserting in the case . Yes, two provisions that have the emoluments clauses in foreign and domestic, and also the clause that talks about the emoluments of office. Are you saying. Go ahead. Judge, i think that the monument means profit or gain advantage and in all three of the constitutional terms and we know when they are talking about the office or the emoluments whereof, they are tying it to the specific office. We dont see it in the foreign or the domestic emoluments clause, and that is how we know that the congress, the framers were intending it to be given the broadst read iest reading as what is allowing the president to do prophylactically what is being done here. And you are saying in the section 1, definition 6 . It is the words around it. So if you have an emoluments of office, it is tied to the office, but when you have the foreign emoluments clause which is any emolument or present four times, you know that you are supposed to be reading it broadly. So obviously, the words of any constitutional provision have to be read in the company they keep, and in the foreign domestic emoluments clauses they were to be broad and reach any profit or advantage gained. So if the president were to buy a bond issued by a locality or a state, under your definition, it would appear that the interest that the president would receive on that bond is an emolument . Not necessarily judge agee, and this is following from knoll canning that we look at the text and not history in practice and we have the l. O. C. Issued several oopinipinions that are well, your definition is contrary to that. Because you are emphasizing any and you have a broad definition of that, and you just said, well, not necessarily. So, how would you differentiate one state bond from another state bond under the domestic emoluments clause using your definition . And so judge agee, i think that how you would do it is to look at whether or not the president is getting any type of particular advantage that is not available to everybody else. If it is the same interest on the bond that any bondholder is entitled to, then following from the reagan loc payment which is dealing with pension payments which is similar, that would not foul afoul of the emoluments clause, but if the president is receiving a particularly high Interest Rate or Something Different that is the discretionary interest of the state that others are not given advantage to, then that would fall under the emoluments clause. So it is a profit or advantage or gain that is different than everyone else gets . Profit or gain, and if you are looking under knoll caning, you have the context that with those opinions, when the descriptions are nondiscretionary, and if the president gets a drivers license that is not a profit or advantage that is to him, but it is neutrally and nondiskoresh nally available to anybody else. So it is not just profit well, it is not well, it has to have a profit, because if you bought something and getting a return on the money, it has to be a profit. So the reagan l. O. C. Opinions thoroughly analyzes this and because it is something that is nondiscretionary determination and readily available to everybody else in the pool, and here the bondholders, it is not running afoul of the emoluments clause. But what about the situation of somebody coming into the office that owns the assets that have been giving them dividends and in this case, the hotel was in existence before the president took office and he was receiving the income from the hotel before, and like anybody else would own a hotel or motel or any other business enterprise, and is that falling into the class of available to anybody else . When before he was president , he was absolutely entitled to foreign i understand, but he didnt change his status there except that as i understand it, he is not even receiving those benefits that he is doing something else, and donating them to the government or whatever else, but set that aside for the moment, and the status with respect to the hotel is the same as when he was a private citizen, and every private citizen who invests in something is entitled to receive the returns, so he held on to that asset while he is president , and he is getting the very same absent his donation now, but he is getting the same benefit that any other member of the public would. What i am trying to do is to find out the scope of your distinction and response to judge agees question is, because it seems to me that he is in the same class of persons that receives the interest on bonds, and you are saying that bonds dont apply, but yet, income from the hotel apply, and i dont know where you get that from the constitution. I dont see it. I respectfully disagree, judge niemeier, what changed is that when he became president the emoluments clause cuts him off from well, then why not the bond interest, and maybe this is immaterial to the whole operation we are talking about, but i am taking you to task for your now creating the niceties and what is an emolument, and you are saying that the interest on a bond is not an emolument, for some reason, and i dont know why under your definition, because it seems to me that it would cover that and everything else. I am happy to explain, because if the fixed bond is received from when he was president or not, and the same as anybody else would receive, and the time of the discretionary of the comptroller have found not to be emoluments. If the president by virtue of becoming the president and especially because he is available to accept and in fact invite i want to make sure that i understand on this. What is it that you are asking us to do . So i think that this court has a wide range of injunctive remedies available, and the clean zest the divestment of the hotel. And do what in respect to the trump hotel . He would divest in it. What do you want us to do in this appeal . You are not asking us anything, but rule on the 1292b question. I would ask the court to deny before starting a journey, that i would love to have some idea where i am going to end up. And it is going to whole redressability aspect of standing, and i would like to know exactly what you would want us to know what you are asking, and i mean, we cant enjoin foreign visitors from using the hotel and you cant put a single asset in a blind trust. Are we to close the hotel for the president s term, to cut off any Beneficial Interest that the president has in the hotel . It strikes me that these are pretty bold examples of interference to undertake without some support from congress. But what do you want from us . What are you asking us to do . So i think that there are and i think that the focus is a great question and in answering that, i would ask you to address first, what is the injury that you are alleging occurs here, and then tell us how the injury gets redressed. Sure. So if i may and get away from the bonds and things like that. And let me take the questions in order. Judge is asking what i want to do and that is to deny the mandamus petition, because we do not believe that is all you want us to do . Yes. And secondary, because as the d. C. Circuit found there is not a clear and undisputable right to the writ of mandamus. Where do we end up . You know, you dont get on the train unless you know the destination. And so to answer, judge wilkinson your question of what we want in the end of litigation is injunctive relief of the we dont know what an emolument is. I mean, is an emolument, if the president keeps the trump hotel open and has a Beneficial Interest in whatever remuneration comes from that, is that an emolument . I have no idea if that is an emolument, and we are sort of making it up and whether it is or isnt, and arent we makeinga ruling that is going to make Public Service very inhospitable to people with a business background, and people with a successful businessman or not so successful businessman, and will they want to go into the Public Service if there is going to be a Beneficial Interest is going to be cut off, if they are going to have a divestiture which is traditionally disfavored in equity in some sort of fire sale, and are we making the Public Sector and Public Service increasingly hostile to, to those with a business background. Obviously, that is only one of many, many backgrounds that should inform governance. But we are trying to ret bars and hurls for those getting into Public Service, because what they want to know is to have some certainty of what is going to happen with their investments and their assets, and we are providing nothing but the way by way of the certainty, but a gigantic cloud of uncertainty which cannot help but operate as an impediment to those with the business background seeking public office. Well, i think they there is a lot in the question, judge wilkinson, and so if i can start with federal officials who deal with the emoluments clause all of the time and that is why we have a body of Legal Counsel involving everyone from the president to the military officials who want to live in foreign countries, and the backdrop of the comptroller generals who give context to the emoluments clause and was president carter in violation of the emoluments clause when he continued to have a Beneficial Interest in the peanut farm . He put the peanut farm into a blind trust. So i am not talking about the meaning of the emoluments at the margins, but here that the president is using the hotel to solicit foreign and domestic business he is keeping the hotel open at the market rate. Why is that using hotel to do this or that or whatever . That is maybe what all of the problems that judge wilkinson has outlined might be a problem that you would have down the road. That is we are not deciding this case today and that is my response to judge wilkinson here, judge motz, because we have propounded the subpoenas that do not go to the president s internal affairs to put the case much far afield of cheney and if we cannot establish some of the aspects tof case at Summary Judgment, and if we prevail, the judge can come back to the court on the appeal to a final judgment and raise all of the appeals counsel, if i may. I am sorry. Counsel, i would love for you to address the judge diaz question, and at the end of the day, and i understand your divestiture from injunction, and he has said that there is maybe injunctive relief from the suit that does not run to the president , but instead, runs to the corporate entity, and some third party. Is that part of the claim that you have made is a Third Party Injunction . No, i think it is possible. The Second Circuit had a couple of varieties and we believe that divestment is the cleanest option but we want to separate the foreign and domestic profits from the president. That can be accomplished in several ways. Do you need to have the third parties in order to have an injunction running against them . Respectfully, the Second Circuits third party is cure, you because the president is the party in the case. And the divestiture of the president is something that is not Supreme Court closed to the president , and equity to stop an ultra virus act, and this is going to be framed going back to but the president is the party to the case. And the third party is not a party to the case. It is the president of the United States thats the defendant in the case. That is the party. Judge wilkinson, that is why i am not advanced what the Second Circuit had in the footnote, but there is going to be informed by judge motz suggests the facts on the ground. But what the president i have a question for that, counsel. You have noted that from the outset. I am curious actually if that is true or why that is the case. If the emoluments mean what you say they mean, and the District Court adopted your definition, then why arent you entitled to relieve now . What do you need in discovery to get an injunction . Well, judge rushing, we have made allegations of foreign and domestic governments have been spending money at the hotel or at the gg. A. S. Lease is an emolument, and we have been trying to determine if the allegations have substance and if they do, we are entitled under our definition of emolument, and as a result of the targeted discovery which i might add does not go to the office of the president , and if the result is that we can prove our cases then we can prove our case. And your definition of emolument is any gain or profit, and so if foreign officials spending money at the hotel, which you have newspaper reports saying they are, then the gain flowing to someone who has an interest in the hotel, you say it is satisfied under the definition, so i am curious what discovery would produce for you other than, you have answered the legal question and the District Court, right . I think that newspapers alone are not discovery that is showing that the allegations are proven, and we feel confident that we will be able to move forward to prove the allegations. Well, you dont need much, though, right . You are not trying to get damages, but you need one instance, right, to get an injunction . That is all of the more reason that the court should be exercising jurisdiction, because this case could be straight forward and resolve the issues of Summary Judgment and if the president is dissatisfied and if we are you say six months of discovery. And i am no trial lawyer, but discovery takes a lot longer than routine case. Is this the routine Business Case . We believe it can proceed expeditiously and six months of discovery and getting to the Summary Judgment of whether the president is violating the emoluments clause is nothing like the multi year protracted discovery like i am used to seeing looking at trial records. One other, if i may ask, back to the suggestion that the divestment might be a relief that you say is the cleanest. If the president putting aside for the sake of discussion the earlier preliminary points, if that were to be done, that would be done by the president individually, correct . Absolutely, but the emoluments clauses and this is not unique in the constitution are clauses that affect an individuals private behavior by virtue of the official position. But my point is that the divestiture would be done by the president as an individual, am i right about that . And that is what you seek and we got past the hurdles, and that is what is ordered . Yes, the president at the end of the day so you would seek 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 clause apply to him. And he is not a priority in the individual capacity to this case . So the emoluments clause much like the incompatibility clause applies to private individuals by virtue of the federal office, and the emoluments clause applies to the president as an individual, because he is president. So asking him to divest the hotel or whatever the ultimate outcome might be is no different than any other federal official, and the loc opinions make it quite clear that it is kis appl to private conduct. And there are opinions that say it is okay for the prince of prussia to give gifts to people, and so those are helpful for us to look at, but they dont bind us a whole lot. Certainly not binding, but under knoll canning, they inform the practice, and federal officials because the foreign emoluments clause applies to every federal officeholder including you judges have to interact with the questions and go to offices of government ethics to deal with the conduct, and yes, sometimes that involves affecting your own private conduct to ensure that foreign and domestic officials cannot ingratiate themselves to the individual in the private conduct. So i do see that i am out of time, but i wanted to get back to the fact that this court should not reach any of the interesting questions at this point, because we are on a mandamus petition to be expired. And so if under the relief that you are proposing, if the president were to transfer his ownership interest to his son. That would end it, right . Absolutely. Assuming that the son is not a state official or i wanted to lead up to something. The hotel would still be called the trump hotel, right . And you would expect that the foreign officials would still spend their money there. But instead of the money going to the hotel, the money goes to the president s son, right. Under that relief. Yes. Okay. So, we have a hotel in washington called the trump hotel with the profits being spent by foreign officials and the profits go to the president s son and the people keep coming. How is the state of maryland adversely affected by the fact that the money is going to son as opposed to going to the father . Respectfully judge niemeyer, that is a hypothetical. Well, it is a hypothetical, but it is it does not square with the doctrine of of course, it does. There is no demonstrable or economic effect that the state of maryland is hurt by the fact that there is a dividend or a profit of some kind paid by the hotel to the president as opposed to paid to his son. The competition interest that is being talked about in this case is the existence of the hotel named the trump hotel in washington in competition with the facilities that are owned by the district of columbia and maryland. No, it is the ability of the foreign and domestic officials to ingratiate the president specifically by tendering emoluments. And you think that is going to change, the fact that the president doesnt get right now as as a matter of fact, and i understand that the president doesnt get any of those profits from the foreign agents, and so instead of his donating them, he just gives his interest to the son. It is not going to change a thing. We are under the same status quo, and the state of marylands interest isat ten yu waited that it is going through the Convention Center through the state of maryland and now the state of maryland has an interest, because the hotels competitive interest is diminished and that is decrease and now the Hotel Industry of maryland is injured. I cant figure it out. We are not to compete on the same amenities, because we can offer the same amenities, but we cannot offer the ability to ingratiate individuals to the president , and if you remove that, you will be taking it off of the table. No, you cant. The president can still invite them there, and all you are removing is a stream of income that goes from the hotel to him as an owner. And if we divest and had to go to the son, and hoe assis he ao the son, and he can still ask the prince of saudi arabia or whatever, you ought to come to stay in the hotel. Is that an emolument . He is not the recipient of the profit, and so it is not an emolument . That is adversely affecting maryland, because his son is getting it and not him. It is the curing of the competing on the equal footing, because we cannot it is not changing the competitive formula and there is no calculus in which that transfer from the father to the son changes the competitive analysis, and that is what the Second Circuit decent says. I disagree, because you are saying that no economic actors would change their behavior if they could not ingratiate themselves to the president how is that . They are going to the hotel because the son is getting a profit and the president has asked him to come. While that conduct is not satisfactor satisfactory, that is not what the constitution speaks to, that his son will be preventing him from gaining the yes, and not just the president , but he can ask them to go to any other club, and as long as it is not the president , but he may get a benefit of it. And let me ask this question because i am curious from the proponent position on this, and you went to the discovery and proved everything and more of what is going on, my understanding is that the position of the president , you cant do anything about it, because congress has not acted and so there is nothing that you can do. Is that true . I believe and that is the worst case scenario, and dont take the minimal scenario, but go to the worst. The president gets up there, and says out there on the loud speaker to everybody, if you come to my hotel, it is a good thing. I need you to come here to advertise, and just be here. Nothing can be done. Is that the end of the answer . That is absolutely his position, and that is scarily in armstrong and a long lineage of cases to allow Equitable Relief for those respectfully, that is not his position. His position not that nothing can be done, but there is a political process whereby something can be done, and his position is that there is a congress whereby something can be done, and his position is that there is a court of Public Opinion by which something can be done when the president wanted to hold a g7 convention at doral or whatever, and the people didnt throw up their hands and say there is nothing that can be done. There was immense pressure brought against what was an overstep in using that particular piece of private property for public business, but that is going to show you that, yes, something can be done, litigation is not the only way to getting something done, because there was an immediate corrective to that doral business which caused the president to back off from what many in congress and across the partylines thought that it was a terribly inadvised step, but it is not fair to his position to say that nothing can be done. It is just that there are other avenues than this particular manufactured suit. Let me be clear, because i think that judge wilkinson makes a good point. We are not talk about nothing can be done, but speak to reality. Essentially and even the doral instance is something that the president chose to do, and congress didnt plan to do anything, and Public Opinion is what it is. And so if you have a separate branch and a congress who is absolutely inactive and we can all accept that is probably the case here, and a president who takes, and goes right to the line or right over the line, this court and the courts as i understand it, the courts can do nothing about it. That is what i understand his position to be. And judge wilkinson, the fact that there is a court of Public Opinion does not deprive this court of equity jurisdiction and the fact that there are multiple ways to skin the cat does not mean that this court should not act. And except that the constitution designs mechanisms and in respect to the president , the design is to have him not engaged in private litigation and to impeach him. He can be removed from office or voted out of office, but to sue the president is a matter that is unplowed ground and under the structure of the constitution, the Supreme Court has not been kindly to that. Now we have i think that now we have a District Court that says that we can sue the president , because that is what i think. The Supreme Courts decision of nixon versus fitzgerald and nixon and jones means that the president is not immune from court in all circumstances. So here, when you are not looking at the inner workings of the office of the president , and this is things that are farther from the margins and expressly prohibited from the constitution, we are in the armstrong territory of this courts jurisdiction to allow ult ultu ultravirus action. And if we have the tiniest bit of cooperation with congress, and so you do things in governance in conjunction with the other branches, and you dont just go it alone, and we are at the weakest possible posture in this case. I fear that we are going to be tossed into the partisan scrum which is unfortunate, because i think that when partisan fevers grip the country the way it is best, it is best for the courts to back off and say that we dont want to be part of it. We want to be dedicated to what we are all dedicated to which is the rule of law, and i cant see how the rule of law is vindicated by a suit that is wholly unprecedented in nature and has taken on a solo basis. We are flying solo. And taking a provision which is not selfexecuting and writing our own cause of action which is last i checked to be a legislative and not a judicial matter. I am well over my time, but i have a few responses. First and foremost this is not a political suit, but it is the action are where the president has taken the unprecedented step and one that is taken let me stop at that point. Not to talk over my good friend wilkinson in the partisan perspective, but whatever this court does, it is going to apply to every president , and regardless of the party, and what we are doing is not just this president we are talking about, but we are talking about every future president and what we do today is going to apply across the board. And this is not the only instance that this may come up. Absolutely, and we know that, because every other president has sought guidance from the legal office or the comptroller general of how to order the affair, and we are here because president has not. No, we are here to determine whether a writ of mandamus lies, and we are having all of these interesting discussions about what might happen when this case comes back to us. But, counsel, arent we really here to determine whether the District Court has usurped the yu dishl a authority . Absolutely. And ask you to get us back to that point which is the point at issue today. I agree, and it is where i started, judge keenan, and because it is depositive, and every Court Considering the question has upheld that mandamus is not the appropriate vehicle to demand a 1292 certification, and judge friendly explained that congress intended to have a dual gatekeeper. And what about the case that was referred to . That is an instruction to certify, and he lies on the fifth circuit of the mcclellan case, and when that case came back to the fifth, it said that the court had the jurisdiction or the discretion to deny the certification decision even though the fifth circuit had put the thumb on the scale. I think that is speaking to the fact that the District Court is the first and sometimes the last is it your view that this sort of the dual gatekeeper role that 1292 seems to contemplate is absolute in every case . It is, because it is a limited exception to the final judgment rule. This court is we need to say that in this case . I think that this court has to apply 1292b as the text suggests which is that the court is of the opinion, it is going to kick to this court to determine where to take it, and when the District Court is not of the opinion of the 1292b criteria were met, that is tend of the matt the end of the matter, and if the president wants to come back on appeal or some order that is odious, then he can come back to the court. Why dont we dive into this case and go through rounds and rounds of discovery and the like without having the slightest idea of what remedy we want, or what the source of the right is, and of all of the under questions, and it is like you know, to again, it is like starting the journey without knowing where you are going. How many people buy an airplane ticket and get on the plane, and they have no idea where the plane is going to land . I think that i know exactly where this plane is going to land. We believe that we have boarded a plane to tell the president not to be accepting foreign and domestic profits through the hotel, and we can look at the end of it is that is such a general formulation, it is giving guidance to no one. There are clear complaints. The g. A. S. Lease, and allegations since the complaint which is the main governor, and the governor of kentucky, and we believe that we have cleared the initial motion and the whole purpose of litigation is to figure out where the plane is going to land, and you dont have any absolute certainty in the cases, and that is why we litigate. We, we are believing that we are in the general direction, and not to kill this airplane analogy, but we are at the tsa, and this is where congress has man dated by making it a dual gatekeeper process. You have to have an assertion to the right, and the plausible remedy, and the problem here is that there is no right here conferred on anyone by this particular provision. And the Supreme Court has rejected that time and again, if you are looking at Free Enterprise or bond, and there are structural provisions of the constitution that those especially states and more often, it is held them nonjudicial and there are some nondistischable, and it is critical that the emoluments clause was placed where it is, and not in the bill of rights or in some with or without any rights that are conferring language. But just as the appointments clause in Free Enterprise are bicamer bicameralism, we believe it is a right of the court to indicate structural changes to the constitution, and that is not a question that the court needs to look at today, because we are looking at whether mandamus is appropriate to take jurisdiction of 1292b and we believe it is not, and the secondary question of mandamus to outright dismiss the case is appropriate, but we believe it is not appropriate, and the d. C. Circuit court a agreed with us, because it found no dismissal when well, the d. C. Court said that it is not wading into the question of mandamus. Respectfully i am quoting what the d. C. Circuit said. It is not wading into the question of whether mandamus is to the 1292b, and i am speaking to the second question which is mandamus outright to dismiss and what the court said that although the plaintiff has identified substantial questions in the standing of the cause of action, he has not shown a clear and indisputable right to dismissal on those grounds. Absolutely denied to go into the brewing circuit split of the mandamus of the 1292 is appropriate, but it clearly said that mandamus is focused on the usurpation of the judicial power, and the Supreme Court has directed that you can direct the court to get out. Which is dismissal. And so two avenues for the mandamus that the president has sought, 1292b. And 1292b is the mandamus because the court refused to let us review the question, but the question comes up, because of the court made an analysis under 1292b which is a clear abuse of discretion, but the question then comes clear abuse of discretion was exercised or the abuse was exercised in a circumstance where the court usurped judicial power and the Supreme Court for instance in the slagenhoff opinion said that those are two alternative things, the usurpation of power, and dissolution, and that is hel held in cheney. And that is why there is a clear right not to and they said it is a clear abuse to certifying or refusing to certify and asking the court to look at it again, and then the District Court certify and right back up, and that is where it is. So they took the extra step, and we didnt take that step. I want to be clear about the two types of mandamus for the president. The first is usurpation of 1292b, and that is what the d. C. Circuit did not want to wade in, and that sef ri court of every court of appeals has refused to hear, and then the mandamus for dismiss and that is the one that the d. C. Circuit found, and so we win on every theory of mandamus as the circuit found in the underlying order, because every court of appeals to have considered the 1292 b question is holding the circuit as inappropriate. I am well over my time. Thank you, counsel. Thank you very much. I have the mandamus standard and judge keenan, i wanted to address your questions about that. You are absolutely right that mandamus is extraordinary relief that is only avoidable, and let me quote the burden of showing the right of the issuance of the right is clear and indisputable. We dont dispute that, but this is what cheney further said and important, only exceptional circumstances amounting to a judicial usurpation of the power or a clear abuse of discretion. Or. In the disjunctive the Supreme Court has made totally clear that the clear abuse of discretion does satisfy one of the prongs of the mandamus standard and two, this is why the standard is met here. Let me start with the 1292b standard and judge diaz as i predicted in the opening argument, her position is that no matter how flagrantly the District Court abuses the discretion under 1292b, there is nothing that the court can do it, and you asked point blank and she answer and that is the necessary implication. She has to read 1292b and strip this court of any power to supervise a District Court. I guess that i am not following that, as i understand her position and that is awkward, because she is not standing up there anymore, and the position is that we cannot use mandamus to certify a court to issue a order under 1292b but wit we could order a distri court to quash a particular discovery, subpoena. We can still get at the underlying problem if we think that the District Court has usurped Judicial Authority and that is still no clear and undisputed right. And your honor do you understand the position differently . I understand what you are saying, but what i would respond to is that she is saying that there is no way at all to get at the abuse of the discretion in the certification. As i told judge keenan and read from the Supreme Court the clear abuses of discretion, there mandamus available for it, and she is saying something of 1292b is stripping the court of that power in this particular context. Why does it matter . I mean, i thought that even your opening argument and certainly your argument before the panel is that this is a lot more straight forward if you direct mandamus to dismiss the case, and who cares if we can get them to order a District Court to certify a question for appeal. And two things about that, your honor. One is that i certainly agree and the third point that you can do that, but this is why it matters. It matters because of judge niemeyers question is because of the standard of the 1292b is whether there is a substantial legal question. This court would not have to bite off the question if it is disputed at all and excoo was use me, i read courts reasoned decision on this, and the court relied heavily on the standing the government had identified one of the three bases, and even if you got into the interlocutory appeal on, that it would not bring the litigation to a quick close, and the merits, the plaintiffs would still have a cause of action and a lot of discussion by the District Court and not only about the substantial difference of opinion, but things that were very particularized to this particular case, and the litigation strategies of the parties, and so i feel that we are not really discussing the basis for the District Courts decision. With all respect, that is i know that the District Court said those thing, but it has to be incorrect, because one of the theorys is that the president is not subject to suit at all, and if we are right about that, the case is over. There is nothing to talk about anymore, and no further proceedings, and nothing. The case is over. So if we are right that there is a substantial legal question about whether the president is subject to suit, it is a clear dispute. And if there is a clear dispute, the District Court could be right i have a longer answer that we can put in the briefs and they misunderstood the theory. Okay. So we should issue mandamus if the court misunderstood the theory . They clearly misunderstood the theory, but the subject of the president not subject to suit, that is tend. If the if the the end. And if there is a substantial legal doubt, and if that is a clear abuse of discretion, and clear one, and you cant as Appellant Court you cant do anything about it, and that is just to use her example if tsa let the guy through with the loaded gun and the supervisor says, well, i hope he doesnt bring down the plane. There is nothing about 1292b that puts this court in that position. Frankly, i think that is your position. No matter what the president does, there is nothing that the tsa courts can do. And that is a great segue to the third point and the answer to judge harris, and again, this is the Supreme Courts decision of franklin versus massachusetts, the president does not explicitly excluded from the purview, and out of the separation of powers and the unique constitutional position of the president , we find that textural silence is not enough to subject the president to the provisions of the apa and the provision as and the apa is in the constitution of the United States . It is a statute that authorizes the constitutional it is not in constitution. That is right. It is in a clause of the constitution. And the constitution does not force people to sue. As she pointed out incorrectly, she is not she is the colleague on the other side . Yes, my colleague on other side counsel, even. Counsel on the other side pointed out correctly that her claim is not based on the constitution itself. It is based on an implied cause of action in equity. The courts equitable jurisdiction is coming from congress, and if you are looking at the Supreme Court decision in groupus mexicana and that is why this is so important, because absent a clear statement of congress, you cant sue the president. Even set aside franklin and looking at the Supreme Court cases, the groupus mexicano, it has to be traditional forms of leaf and congress has to do it, and they cannot point to a single instance where the Supreme Court or the Appellant Court with one exception from d. C. From 40 years ago has allowed a suit against the president in his official capacity and it is a radical extension. Tell me about the Second Circuit. The Second Circuit did not reach this question, your honor. The District Court only addressed. Because nobody had mandamus there . No, because we won in the District Court. And there was a reversal of your pin. Yes, and you asked about the District Court , and we won on standings and so the Second Circuit did not reach. The gist of the questions that have come here is that what we are supposed to do at this stage is to look down and see where youre going, and if we cannot foresee that you would be getting relief, then we should grant mandamus. Isnt that fair . I think that we want to see where the airplane is going before we get on. I think it is clear from right now that the airplane is going to crash, because i understand what you are saying, but that is your position so that the Second Circuit would not be the question was not presented. And the question was if the airplane can fly, it was. Your honor, the Appellant Court does not rule on the questions that the court has not ruled on yet and that is why they have not addressed it. But in the discussion today, there were a whole bunch of questions that have not been ruled on yet. I dont think that is right, your honor. Every single one of the arguments that i have made thus far is something that we argued below and the District Court objected. And is there a reason that you guys, or you did not seek the mandamus in the Second Circuit to seek outright, because of the standing of the but we won though. By the time you got to Second Circuit, it didnt matter. There were no alternative grounds. We won below on the jurisdictional grounds and so you could not affirm the alternative grounds on the nonjurisdictional basis. Good. We will wait to see what they are going to say, because it is well, one more question with your indulgence and i wanted to make two quick points about the merits there. Is concern and it is understandable, and i understand why the people would be concerned about the president acting above the law, and so it is important to emphasize and conclude my argument with the brief explanation of why their argument is false on the emoluments clause, and one is because of the judge quattlebaum and judge agees questions. They have said that apparently, you have to look to the history, and so we will look to history and this is my final point. In 1810 and we point this out in the reply brief, in 1810, a proposed constitutional amendment to extend the emoluments clause to all citizens and that constitutional amendment was passed overwhelmingly in the congress and nearly 3 4 of the states. What that means is that my colleague, and opposing counsels position today is that almost the entire country, almost passed a constitutional amendment that said that foreign diplomats could not buy food, housing or lodging, and i suppose starve to death in the streets. That is what they are interpreting the emoluments clause to require. It is just simply not tenable. And it is a totally a, historical, and contextural interpretation of the emoluments clause. It is not to recover profits and losses from commercial transactions. Thank you, your honor. Thank you. Thank you and may it please the court. This appeal raises two questions, first, does the court have appellant jurisdiction and, second, is the president correct that the plaintiffs claims against him in his individual capacity must be dismissed on one of any number of grounds that were asserted below. The answer to both questions is yes. With respect to the courts jurisdiction, it is clear that the president s absolute immunity was effectively denied below because absolute immunity is immunity from suit, this court and the Supreme Court have repeatedly emphasized the need to resolve the question at the outset of the case. When the District Court declined to do so and opened discovery, the president was subjected to pretrial procedures and could appeal the effective denial to this court as the court has recognized in jenkins and in nero. Where did the court declined to do so . The court failed to act on the motion, address multiple requests from us to decide that motion quickly i thought that the court said that he understood and he was thinking about this and he would be ruling on it. Thats what the court said at i think it was twice. May have said it twice. But the motions to dismisses by the government were decided, you know, by the end of the summer, it was august at the time. We asked for a status conference as discovery began to move forward. Discovery was opened by an order of the court. In december we asked for a status conference. Two weeks went by without any indication by the court and with discovery on the day you requested another ruling, actually, in august, you said, at the earliest convenience and then in december, you requested it again and on the very day you requested it, the Court Ordered discovery. Correct. Six months of discovery 38 subpoenas. The order, it wasnt against the president in his individual capacity, thats correct. The discovery order reached a number of third parties that included some of the organization that is are associated with the president s business operations. But that point is neither here nor there because the proceeding of discovery against anybody in which the case the president remains a defendant is subjecting it to pretrial procedure. And iqbal, you may remember this, addressed the question because there was a suggestion that they would hold off on doing any discovery with respect to attorney general ashcroft and the court said no. The continuation of discovery puts the president , in this case, in that case, general a ashcroft in an untenable position, assert whatever rights that your client may have and be subjected to the pretrial proceedings and the effective denial of your immunity or be able to take an appeal from the subjecting to pretrial procedures. Thats consistent with this courts decision. What about al shimari . You figured that one . Im sorry . Al shimari, our al shimari case. Which al shimari case is that . 2012. Its en banc case and we said disputed questions that arise with respect to claims of immunity are subject to the discovery if the court wants to be informed. Even a party whose assertion of immunity ultimately proves worthy must submit to the burdens of litigation until a court becomes sufficiently informed to rule. That may be that may be true in some respects thats our en banc precedent in 2012. Well, certainly there are there was a collateral order qualifying the case. Correct. Not ill give you that. Absolute immunity is a stronger protection against the pretrial proceedings. But even in that case, the fact that the direct court made a qualified immunity and appeal comes up and theres deemed some further procedure that is necessary to reach that point, doesnt really apply in this case because you have all the information that you need to decide the absolute immunity question at this point and the only other choice, again, and, remember, once we did file a notice of appeal rather than indicating that it was prepared to rule on the question of absolute immunity, it was the court that raised the questions as to whether the president in his individual capacity could be dismissed from the case. I dont think theres any basis to assume that its forthcoming from the District Court theres a lot of basis. The District Court twice told us correct. You have to this is your only basis for appeal is interlocutory order. Its the only basis for the interlocutory appeal. Its been affirmed by the Supreme Court. Iqbal makes it Crystal Clear that we have the right to be here. Of course there are other issues im sorry. Unless we invoke the collateral order doctrine because we conclude somehow that the District Court has denied you immunity, do you have another basis for appeal right now . No. The denial of immunity is our basis for appeal in this court. Okay. So lets talk about denial of immunity. So you rely on the two cases from this court as well as iqbal, yes. Okay. Lets talk about the two cases from this court, jenkins and nero. Okay. In those cases you had a benefit of an order from the court that it was going to right. An order denying immunity is different than saying i am going to reach the question of immunity. But the but not yet. But denial of immunity is no less a denial by nonaction from the District Court as it is from an explicit action tell me a cite me a case that says that. I think we said in a number of cases that other circuits that indicate that effective denials are appropriate. Yes. Effective denials. But we dont have an effective denial. We have are you a litigator or just an appellant lawyer . I dabble in the arts of litigation as well very good. You know, the district of maryland historically has had cases waiting to be ruled on for motions to dismisses for three years. So seven months is nothing. That is ordinarily not a problem, but setting aside the fact that this is a case that does involve the president of the United States, separation of powers, generally counsel in favor of those migrants. Once discovery is open, once there are dozens of subpoenas out there are there any subpoenas against the president in any capacity . That implicate the president s interests. And it doesnt matter as in ashcroft, you cant sequence the discovery in a way to avoid this problem. Counsel, there are cases from other circuits about these denials of immunity. But are there any like this where the period of time is so short and doesnt seem unreasonable given that the District Court is dealing with the official capacity suit. Theres no unreasonable delay. The District Court is saying i am going to want it, and, yes, discovery is open but not as against the party who is seeking discovery. Im sorry. Whos seeking immunity. And i understand your point about iqbal, that the president s personal capacity lawyers may have to attend a deposition. But there is no discovery that has been ordered against the actual party seeking immunity. I cant find any case like that saying that when you add up no unreasonable delay and discovery against a Different Party that i will grant you implicates the interests of the party seeking immunity and the court is saying im going to rule on we can say theres been a de facto denial. The lack of the case thats going to be on not even on all four. I guess im troubled by the fact that it seems to me that for us to say theres been a denial in the face of the District Court saying im getting to this, is a difficult lift and we dont have the thing that makes it that the other courts rely on to do that. We dont have either of the two things, unreasonable delay or discovery against the party seeking immunity. Im troubled about how we fill that gap. Again, i understand you understand this. Under iqbal and i think generally youre going to have to go to the depositions. It may be discovery requests of course you could try to mandamus that. Discovery order. Right . You wouldnt have to have the president sit in on a deposition. You could come into court, get some relief, right . Our immunity defense at least is not even been adjudicated. The cases are if there was a decision on immunity, you can appeal that interlocutory. Again, i dont think its that heavy of a lift just because if the district is saying some of those cases its one sentence, im not going to rule on immunity at this time. I need more information is still sufficient to constitute an effective denial of immunity than a statement that i will rule on immunity eventually but then the initiation of pretrial procedures we said no in the al shimari case, we said no to that question. We said no. You got the en banc court here now, we could change that. And we said no by a vote of 114. This is absolute immunity. Was there any case that says that . Well okay. Fair enough. I dont think the principles can really dispute. We agree that absolute immunity is immunity theres 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 opened up not it was not its just the opposite. It was not limited to the immunity ruling. The immunity was put on hold, so to speak, and the Court Ordered discovery to go ahead under a sixmonth program in which itself violates the immunity. Correct. And it seems to me its more than an effective denial. Its almost an explicit denial when you order discovery and not Discovery Limited to the immunity, but general discovery which you have to tend and participate in or forego your rights on in a case. This is all the same case as the suit against the president in the official capacity. Its a single suit and the discovery may be limited to certain issues but it was not limited to immunity. Correct. And it seems to me when the court orders a program of discovery, it is denying absolute immunity which covers discovery. I think that has to be right. Otherwise the virtue of immunity doesnt that ignore the distinction between the two capacities here, which the Supreme Court has also recognized and so why would we assume if discovery has only been ordered against the president in one capacity, it comes against him in another capacity. The Supreme Court this court, we always recognize that difference. The recognition of different capacities doesnt answer the question as to whether the president even if you view him in his individual capacity as an entirely separate defendant is being subjected to pretrial procedures. Ashcroft, they were proposing not to do any discovery against im sorry. In iqbal. They were not ill understand everything. Against entire parties in that case. So if in that case even discovery is only succeeding against other parties still implicates the right to early determination of immunity you have two im over here. Sorry. You have two different cases, one in the president s official capacity, one in his individual capacity and if this individual capacity lawsuit had been dismissed or never brought, you still would have had to have responded to the capacidiscover the official capacity. Im not sure why it matters that the immunity issue hasnt been addressed if your only concern is discovery. Thats not necessarily correct. Parties to litigation have different rights than third parties. And i think as they pointed out, the third Party Discovery in this case were a number of corporate organizations. We are a party to this action, weve asserted in a timely fashion our right to immunity and were entitled to that immunity before were subjected to pretrial proceedings. And discovery even against other parties is still pretrial procedures. And i dont think theres any room when you read iqbal to quip with that point. So raise a question we talked about a lot in the previous case, what is it that you want from us . In this case i think the court has jurisdiction and i know what you think about that. What do you want the order to be . I think the court is obligated to address article iii standing. I think that you have to at least at many minimum you have to we obviously think theres no standing and do you want the case to be dismissed, dont you . That is correct, on immunity grounds, on Standing Grounds or the other issues weve identified. If we have no jurisdiction, were going to dismisses it. Youre going to get the relief you want, right . I guess that depends. We want the case to be you want a rational. But the result will be the same. Well, the result may not be the same depending on the basis of the dismissal. It may have benefits to the president. Nobody forced the plaintiffs to add him to this complaint. They did so out of their own free will. We asserted our defense, we want a determination of immunity to avoid being placed in the untenable position counsel, the order of decision if we determine we had jurisdiction, you suggested we must first go to article iii. May we not go to absolute immunity or is that necessarily have to come behind article iii question . I think this courts decision in williams v. Hanson makes it clear that its a threshold question to satisfy itself. Our reading of this courts decision makes it clear that you do have to satisfy yourself of article iii jurisdiction first. The court then can proceed to the immunity case. But we think both the cause of action question and the merits question are sufficiently intertwined with that, the court has several options available to it. But i think it sets out that jurisdictional questions have to come out first and weld ha woule to go to an article iii standing. I think this courts decisions before both and sense support our view and our reading of the case that is once the District Court was divested of jurisdiction by a timely notice of appeal, we were the District Court was divested of the ability. It would create all sorts of for mischief to permit a party who is unhappy with the way in which the appeal is proceeding to go back to District Court, file a notice of dismissal and dispose of the appeal at that point in time. I dont think a number of other cases, i think doom the suggestion that notwithstanding in this court, that a dismissal can still be effective in District Court. I would like you to address a concern i have that it does seem as that its an odd posture, right, because no one is actually advancing this claim at this point. So why isnt it a little bit advisoryish for us to reach it. I dont think its correct that theyre not advancing the claim. They filed briefs. They have continued to contest the arguments, they have not satisfied with accepting a dismissal. If they had proposed im sorry, if they had proposed to dismisses the case with prejudice we would have a harder argument, but we would have certainty that the president is not going to be subject to suit by these parties. Under the theories that they have advanced with with respect to standing a number it goes further than that in the argument before the panel. If i recall correctly, the Opposing Side indicated that they did want it without prejudice and did not want to give up the right to bring the suit again. And they were reversing that right. There are procedures under the federal rules to e if he can wait dismissal of appeal. Of course weve not been approached at all with respect to on what terms we would be willing to stipulate to dismissal. I think its clear that the argument of the panel confirmed the president s concerns that hes going to be subject to further action and, you know, dismissing him from the case for the time being, and bringing him back in at a later date is just as troublesome as attempting to do it through the discovery process which is recognized in the iqbal case. I do think that the standing question should be decided basically on the same grounds that the panel did, i do think that theres no standing with respect to claims rising against the federal government. I think the standing is overly speculative. Theres no requirements of a traceable injury in this case even the competitor standing cases have imposed and the sovereign interests is very difficult to fathom. And i also think that immunity is a sufficient basis upon which to dismiss us. The president arises only from his official status as president and only violate the emoluments clause as president and therefore immunity would be appropriate. Ill reserve my time unless theres further questions. Thank you, counsel. Good morning, your honors. May it please the court. On behalf of the district of columbia and maryland. We think this Court Lacks Jurisdiction over the president s appeal for two independent reasons. I would be happy to answer any other questions the court may have. First, the District Court did not deny the president s immunity claim. In fact, as members of this court have recognized, the District Court was very clear that it intended to rule on the motion and i would like to read from al shimari, before jurisdiction can be invoked under the collateral order doctrine, a District Court must issue a decision that constitutes a complete resolution of the issue. In other words, the courts ruling must be the final word on the subject address. For that reason alone this Court Lacks Jurisdiction under the collateral order doctrine. Second, the district of columbia and maryland filed a selfexecuting rule 41a 1 dismissal. The filing of a notice operates has an unconditional right running to the plaintiff and may not be extinguished by an advair or the court if you had not filed your rule 41 notice until right now, filed it during the course of oral argument, would that moot our case . So i believe it would and that is the balance that is struck in the federal rules and thats actually what this courts decisions in both merricks and in re matthewss discuss. Even when theres been an investment of resources by the defendant and by the court, rule 41 strikes the balance, its a clear rightline rule. If a motion for Summary Judgment or an answer has not been filed, then a rule 41 notice is an under your view, for instance, you could wait until after oral argument, file your rule 41, terminate the case, you could even wait until after the opinion is issued before the mandate issues and still file . Well, i think that is the logic of our position. Thats not what happened here. But also theres a whole line but that is where your view of rule 41 takes you. It does take us there. But what i would say to that is that theres a line of cases that talk about what the appropriate thing to do to essentially address the concern about gamesmanship is that if the party who is voluntarily moots the case cant get the benefit of a lower court decision, so the equitable remedy of vacanter exists to address any sort of benefit that they would get from that theres no assurance because the dismissal would take place probably on the under the gamesmanship theory on a stage of the case where 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 from brief or argument to be unsympathetic to the decision. So you snatch the case at the 11th hour, the benefit of a District Court decision is not is immaterial to you because youre not going to get it you lose the benefit. Youre going to lose the benefit if theres a reversal at the appellant level. How is that a safeguard against the sort of gamesmanship with respect to rule 41 that you seem to be advancing. What this court said in merricks titanic, 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 has been hearings on the motion and the was actually concerned that there was a fraud on the court, that the party seeking the preliminary injunction had misrepresented things to the court and what the court in that case said is that it is essentially attempting to force the plaintiff to take its medicine in a case like this where the plaintiffs behavior that be so disassembling if not fraudulent. But our task is to apply the text, not improve upon it. And so all of the rule 41 cases contemplate the possibility that a litigant may use a rule 41 notice of voluntary dismissal in a way that leaves the court and the other side feeling unsatisfied but theyve nevertheless described it as an absolute, unconditional, selfexecuting right. Do any of those cases actually deal with a dismissal filed when the case is 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 where the District Court has retained jurisdiction to allow for that kind of liberal volunta voluntary dismissal, but the case is before us. Why should we defer to a District Court dismissal when the case is properly before the court. For two reasons, the first is that the whole its not properly before this court it is. Once a notice of appeal is filed, jurisdiction rests in the court of appeals. Once the appeal is filed, it rests in the court of appeals. The only thing that can happen in a District Court is an act of aid of the appeal. An aid of the appeal. Undermining the appeal is a different thing. The court District Court once the notice of appeal is filed can activate the appeal. Otherwise, jurisdiction is in the court of appeals. Thats the law as i understand it. We had one of these things last year, it was in the there was a case called dominion. There, the court of the District Court had entered a stay and we skirted the issue because they tried to file the rule 41 thing after the stay was imposed. We said it was marred by the stay, obviously, on the face value. So we didnt have to deal with the thing you were presenting. It seems to me youre getting into something you dont need to get into. The only question here is whether this collateral order appeal can go forward where theres never been a ruling. Isnt there an issue there under al shimari about if we have a controlling question of law that doesnt require Factual Development, we have i think an exception to the prohibition from our en banc decision and youre not suggesting there needs to be any Factual Development here. Its a pure question of law, isnt it . So i believe that the immunity question is a question of law in this case. If im right in the way that opinion reads, we dont need to go through the al shimari Factual Development issue that that opinion talked about. I think the opinion addresses the fact of what constitutes a collateral order. Here there is no order. Sure. And the defendant certainly could have sought mandamus. I dont mean to cut you off. I understand your position that nonorder isnt effective enough. We have to address that first about whether the discovery here in effect creates that. I certainly understand that. But that issue wasnt presented in al shimari. Thats a separate decision for us to make, wouldnt you agree with that . So i think that its a separate the question of whether there was an order below is a separate question. But i think so this goes actually back to judge kings question because it is true that the general rule under gregs is that the filing of a notice of appeal divests the District Court of jurisdiction to act, i dont want to belabor the point about rule 41, but there are two important caveats to that. The first is that the that it makes clear that the notice of appeal has to be effective. If its defective, its treated as a nullity. If its filed from a frivolous order thats obviously not appealable, then its not effective. Thats right. If the defendant in a criminal case files a notice of appeal on friday to try to keep from getting out of a trial on monday, we have those things come up. And the District Court doesnt have to Pay Attention to it if it doesnt want to. Its a frivolous notice of appeal. But as a general proposition, the notice of appeal puts the jurisdiction in the court of appeals, period. I would disagree respectfully with the period because it is equally well established that there are exceptions to that. Its not that the District Court can act in aid of the appeal. Under the federal rules of appellant procedure, it can resolve a motion, it can appeal it can address a motion for stay pending appeal. It can correct clerical errors but you have no case, i think, in answer to the judges question before where the notice of appeal has vested jurisdiction on the court of appeals or it has been divested by rule 41. I respectfully disagree with that. What is it . These are cases that cited in our motion to dismiss the appeal at pages 8 and 9. Young versus draper from this court, from 2017, the plaintiff filed a rule 41 notice while an interlocutory appeal was pending and the Court Dismissed the case as moot. Thats nonprecedential. What else you got . So i have a case from the fifth circuit in 1993, mcfarland versus collins. All of these are cited in our brief. Where a petitioner dismissed his own petition in the District Court. Theres also a case, a very recent case from the ninth circuit. It was this week, actually, where the defendants there were four defendants and three of the defendants reached a settlement so they filed a stipulation of dismissal. The other defendant refused to stipulate to dismissal. The plaintiff filed a rule 41 notice and relying on the same cases, citing to merricks tingt a titanic, they said the District Court doesnt have to exercise jurisdiction in order for a rule 41 a1a 1 notice to be effective on the time its filed. The question of whether this is a jurisdictional question based on rule 41 or whether it was a factual question, this court is no stranger to dismissing cases that are on the grounds of their moot. We did it in a case criminal case in which a defendant going through trial came out on bond, headed in the direction going with the defendant on it, and then the president took an action on clemency and nobody asked for mootness, go back to the District Court, you know what happened . The court decided thats an executive thing, this is moot. And just got rid of it. And that didnt have anything to do with jurisdiction. The jurisdiction was here saying its moot because its over. Here for all of our argument about whether this is moot or not, theres not a lot of cases this applies to. It doesnt even come up unless the if the defendant has an answer or a Summary Judgment has come up. Its a very narrow, narrow classifications in which you have an issue of this type that arises. I agree with you, judge wynn, and its even narrower because it has to be a case where the defendant will not take yes for an answer and walk away with the a dismissal. Let me ask you, do you agree with the position that the case against the president in his individual capacity is moot . Is that your position . Our position is that the rule 41 notice i asked you whether you take the position whether the this appeal is moot. So we believe it is moot yes or no. Do you have an answer . Yes. It is moot . We believe it is moot. And yet youve refused to dismiss it without prejudice. Do you still reserve the right to refile the suit . Yes. We are not how can it be moot then . Our position is that it is moot by virtue of the rule 41 a1a 1. Moot goes to whether or not its no longer a controversy. If youre reserving the right to file again, we have this doctrine in injunctions and otherwise, its hardly moot when you want to dismiss now but maybe file later. How can we say thats moot . The position that we have taken on mootness, the reason that we say its moot because of the rule 4 1 notice is because of the cases that say a rule 41a1 notice puts the parties in position as if the case had never been filed. Thats our position with respect to mootness. Lets assume we do have jurisdiction on this based on the discovery and the case and lets assume that youre rule 41 notice, its not something that deprives our jurisdiction. Do you have any argument that we dont have to address standing first, assuming we have jurisdiction in response to what your colleague argued earlier . Yes, your honor. We disagree strongly with the proposition that steel requires this court to address standing first. And the first principle behind that is that the first thing that this court does is look at what is its basis for appellant jurisdiction. The only basis for appellant jurisdiction is the doctrine. I have to two points, first i think youre taking away the assumption i asked you to make. But maybe youre not. No, im not. Because the even assuming that the notice of appeal was effective, still the basis for jurisdiction is the collateral order doctrine. Thats the only basis. What this court said so the Supreme Court has addressed this in several ways. Both cases post date steel, the court said the courts have wide leeway in choosing among threshold grounds for disposing of a case. So theres no reason and this court is immunity which must be immunity which is usually raised under rule 12 b 6 and is an affirmative defense which can be waived, does that get precedence over a jurisdictional issue which goes to the power of the court to act and in steel, i thought it suggested we couldnt assume our power to act if there was a question of that power, we had to resolve that first, and so sms to me this is not threshold jurisdictional issues where we could pick even personal jurisdiction which could be waived, but this is a 12b6 defense and youre saying we should decide that ahead of the power of the court and im i wonder whether steel doesnt tell us we have to decide our own power before we exercise that power. What the Supreme Court made clear in a case that said that it was okay for the court to decide before addressing jurisdictional issues what kind of jurisdictional issues . Personal jurisdiction . Theres a lot of difference, you know. Article iii jurisdictional issues i understand. But article three under a personal jurisdiction is quite a different concept from subject matter jurisdiction. Subject matter jurisdiction, we dont have the power to act and that was what Justice Scalia was trying to point out that we should Pay Attention to and personal jurisdiction can be waived and it doesnt deprive the court of the ability to act. And so i think thats the important distinction that steel makes. What the court said is that the principle underlying steel is that jurisdiction is vital only if the court proposes to issue a judgment on the merits and so what cases after steel co. Say is if there are threshold, nonmerits issues that are properly presented and what are our argument is that here, that is the only thing that is properly presented youre saying that the theres a merits appeal and theres a lack of diversity appeal in a civil suit. We can if theres a lack of diversity and we believe theres a lack of diversity. We can determine the merits . Under the in that hypothetical . Not based on the collateral order doctrine. I asked you in the hypothetical, theres an appeal, and we have the merits and we have lack of diversity. We can ignore the diversity, assume that diversity is there and act on the merits . We dont have the power to do that. What the court said is thats when the jurisdiction thats being discussed in steel co. When the court purports to issue a ruling on the merits. The question is not whether the court can skip to the merit and address other issues. When the court has a number of nonthreshold questions what about statute of limitations . So i think that the when it is a threshold im asking you why dont you address my hypothetical and well get further along. Should we address a statute of limitations issue when we dont have diversity . I think there i would also say that that is a threshold nonmerits question and then the court has wide leeway. Thats what we could decide we could decide statute of limitations . If it is a way to deny the party an audience to the case on the merits, then the court can decide in which order to dispose of the issues. And here where did we get the power to rule on limitations . We dont have the power to do that. Congress gives us a limited power under article iii and one of them is diversity. And if we dont have diversity, we dont have the power to act or to rule that limitations is or is not invoked. Its not a formula that you read and say we can decide anything we want if its convenient or not on the merits. We have to understand the notion that if the motion goes to our power to act under article iii, we have to resolve that before we move forward. There are obviously a lower level of disposals and then we have quite a bit of leeway to make that decision and i believe thats where the Supreme Court was set. So respectfully, your honor, i believe that they speak to this question and put an important limitation on the steel co holding. I want point to multiple case that is this case has decided after steel co in which it has extresly declined to address standing or other subject matter jurisdiction issues you basically are arguing, i guess, that we should decide the immunity issue and not the standing issue . And we think that thats is that your position . That is our opinion i dont understand that is your position. I thought that you thought that there was no final order here and there was no basis for invocation of the collateral yes, that is correct. If we have no final order and no collateral order, we have no appealable order. Correct. All this discussion is if we do, if there somehow is jurisdiction here, then we look at these very interesting issues and discuss them. But if we should conclude that there is not an appealable order here, we dismiss. Thats correct. Thats correct. Can i thats where i thought you were at the beginning. You need to decide standing and immunity and all this stuff and we cant get there unless theres an appealable order. I completely agree. Why are you spending all of your time on something earlier, what are you doing youre talking about all this other stuff about aiding jurisdiction on appeal with a rule 41 and all these other issues. The question here is whether you have a notice theres a notice of appeal that was effective and whether theres collateral order jurisdiction. If the answer is no, stop. End. I agree, judge king. I took the premise of the judges question to be that he disagreed with me about the motion to dismiss the appeal because he wrote a Panel Opinion saying that. You have to be clear in your answer. Those 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, thats all she wrote, right . Thats absolutely right. Thats 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 your opinion as i understood it. I think these were other hypotheticals if we get beyond that. 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 denied it and my question to you is this, when the District Court entered and 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, when the District Court enters an order scheduling discovery in which the president s going to have to participate if hes going to be a stay in the proceeding, is that not effectively denying the right to be spared the o knows under iqbal . There are a few points in there, judge ill make it i want to elaborate all the details. But the real question focuses on the discovery order of 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 covers discovery. So i dont agree that the discovery order in this case constituted an effective denial and i will be happy to elaborate on that you just agreed earlier that you argued theres no order to be appealed from and jenkins recognizes that you dont have to have an explicit order. You can effectively deny it. And my question to you isnt that december 3rd order ordering a sixmonth Discovery Program without addressing the immunity, isnt that an effective denial immunity . And the reason i wanted to start with jenkins is that i dont agree that jenkins stands for the proposition that you can have no order. In jenkins the court denied motion to dismiss in which qualified immunity had been raised. The District Court ruled on that motion, denied the motion and said, i will address the immunity claim at Summary Judgment. There was the court thats the same thing that happened here. The District Court said three times im going to address it later, im going to address it later. It was raised it was raised in april and in april, the court said were not going to hear it were not even going to allow you to be present at the hearing on june 11. And on june 11, the court says ill address the immunity later. And then on july 25th, he says ill do a separate opinion. And when on august 15, the president said, would you please rule on the immunity at your earliest convenience. The court didnt do anything. And then on december 3rd, the president said will you rule on my immunity, and on that date, instead of recognizing the immunity and promise to reach it, the district judge issued an order for discovery which denies immunity because discovery is protected by immunity. Well, the discovery order was only open discovery was only opened against the president in his official capacity and that doesnt make a deference. He has to attend the depositions regardless. I would like to address i dont think he has to attend the depositions is that what you counseled in a lawsuit your client doesnt have to attend depositions, come on . Honestly, i think if we had an immunity claim that we believed needed to be addressed, there are a number of things that i would counsel my sit back in the living room and watch football games. Preserve it and decide whether or not to attend the depositions. Theres no question that the defendant could have done that here and if he had, the result would be that the this court, if it believed that the mandamus standard the position is that you just want to keep the litigation grinding on and on and on, let the District Court have it for, you know, 18 months or a couple of years, court of appeals doesnt have jurisdiction under the collateral order doctrine, immunity isnt 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 suit is to have a litigation go on and on and on and avoid any type of resolution and that you know, that seems to be and i wonder what the implications of having the litigation just grind on without resolution, what are the implications of that for separation of powers . And for the potential, not just of this suit, but of many, many other suits to simply tie down the presidency and the executive branch of government to a greater extent than it has been impeded before because that you know, thats the end of it. Keep litigating, isnt it . Judge gregory, i see my time has expired. You can answer the question, yes or no to the first part. And then you can go ahead. I couldnt guess what your answer would be. There are a number of there are a number of questions baked into that question. Certainly our intent is not to tie up the president in litigation. In fact weve tried to dismiss the individual capacity defendant from this lawsuit and 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 effective denial or through mandamus, but here where the District Court evidenced an intent to rule was working through the issues in this case and theres no order from which to appeal, we believe that this court should, at a minimum, we believe that this court does not have jurisdiction and 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 under the collateral order doctrine, arent the longrange implications of that that the president s going to be tied up in litigation without a court of appeals ever being able to review it, and what it does is once again have the executive branch of government by virtue of your interpretation of the collateral order doctrine, have the executive branch of government, tied up for an indefinite period of time without the ability to seek recourse in the court of appeals for something that for litigation that may be truly going off the rails. And thats thats really what is at issue here. We can debate the pros and cons of this wrinkle and that wrinkle of the collateral order doctrine, but the longrange effect of this is whether we are setting this whole business debilitating road of litigation that affects the power principles. You can keep the executive dangling. So we dont believe that that is this case and we certainly dont believe that the court needs to go that far. In this case in deciding whether there was an effective denial, and even if there was an effective denial, whether this court will then reach out and decide an immunity question in a case that we have said we dont intend to litigate. If you said if you said we dont intend to litigate it, we dont want to litigate it, well dismiss it with prejudice, ill bet you your colleague on the other side of the aisle will be readily prepared to dismiss the appeal. But you have said and even repeated today that youre reserving the right to file it again. Is that what this is all about . Is there some gamesmanship going on here . I dont believe theres gamesmanship. All of that is irrelevant if theres no jurisdiction. These other issues are for the District Court. Judge kings point of jurisdiction and the comments about gamesmanship, thats what we face all the time with cases that come up here. You may have another motive. I dont know what your motive is. Im not going to impugn that to you. We have a legal issue before this court, were a court of law, we need to decide the legal issue in this case and forget about the question of whats going to happen . Is the world going to turn upside down if we dont, if we do this, is the president going to have to work too hard. Theres a clear legal issue before us and if it does go there, there are remedies that can address those concerns. But this is not the time to do it. We dont do it in other cases. Why would we do it here . I agree judge wynn. We dont believe that this court has appellant jurisdiction and the appeal should be dismissed. Thank you. Thank you. This question court have appellant jurisdiction over the case. The case is not moot. The arguments are being pressed. Theres relief the court can give that the president has asked for since the beginning of this case. The plaintiffs are unwilling to give him the anything close to the relief that hes seeking. On the effective denial point, i want to make a couple things clear, the notice of appeal that we filed included a notice of the appeal of the order of opening discovery. We have an order thats not just simply a notice of appeal on the docket untied to any action by the District Court. I think the court has to grapple with the question if its going to require something as explicit as what happened in jenkins, thats not much more explicit than happened here. Its not much different than im going to issue my decision at a later point in time you want this court to take over discovery too in the official capacity case as well . Im sorry. You want us to take over discovery as well, to manage that . No, i think the that subjecting the president subjecting were talking about the law in terms of discovery. District court manage discovery, dont they . But forcing the president to be subject to pretrial procedures including discovery is a but you said in the official capacity, you also extended it to discovery, thats the way you was trying to say it was more than just the individual. We included also a question on stopping discovery even in the official capacity offici official capacity. Didnt you just say that . I said 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 remedy there as well, to stop that, did you say that, yes or no . Just now when i took the podium or at on your rebuttal. Did you say that . Maybe i misunderstood. I thought thats what you said. We may have an honest misunderstanding here. Im not sure what i said so let me rephrase my point on this. Once discovery was opened against any party in any capacity, the president as a party in this case was being subjected to pretrial procedures that constitutes an effective denial of the immunity and we have a right to appeal from that order, even if the District Courts statements were opaque about how long it was going to take to rule on immunity. Were looking at these various doctrines and to listen to the discussion of mandamus and immunity and the collateral order doctrine, its almost as if we think this case is really no different from your order slipandfall case that, the character of the litigation is demonstratively different from we face this all the time. Thats the response. We face this all the time. No, we dont face it all the time. This is a i think everyone would admit its a a case with dimensions that come before us, that simply do not come before us on the normal Tuesday Morning and you have to take into consideration those separation of powers arguments which are fundamental, go to the place of the judiciary, visavis the presidency, and you cant just look at it from the lens of an exercise that puts force or a slip or fall case or something other case that would judicial business. This case is different. I certainly agree that this case presents a lot of unprecedented and highly important issues. It incorporates separation of powers and concerns and those weigh in favor of the a lot of the arguments that have been advanced so far. This is not a case where the parties have not agreed and i want to address a couple points that my colleague on the other side made. A number of the cases that she cited were cases where the appellant filed the rule 41. And theres no relief that can be granted at the court of appeals and its consistent with allowing the appellants to dismisses their cases. The appellant did not object to the dismissal of the case. There was no reason for the court to pass those were filed back in the District Court . Those were filed in the District Court the District Court to handle if the appellate does it or if the parties agree to do it . No. I think because the appellant can always abandon their appeal under rule 42, its essentially it makes no difference rule 41 back in dismissal. Not 42. It is not a matter brought before there court. If the transfer ant jurisdiction by notice of appeal occurs so you cant go back there, basically youre saying you cant. There is some jurisdiction to go back and handle it if its the appellant or if they agree . No. And i think this is actually explicit in the fifth circuit case. That what the courts are doing in that case is treating the motion filed at the District Court a lot of those cases involve pro se defendants. Theyre treating as if it was a motion to dismiss appeal. They didnt do it in the other case in which we sent it back where the parties stipulated to the 41b dismissal in the District Court. In some of those cases that was this court. Again, if they can go back and stipulate in District Court, it has to be some jurisdiction back then. In some of those cases, the parties may have essentially agreed that the appeal was moved. In that case at that point, maybe the case should be remanded and the dismissal can take effect. Theres no agreement that the case is moot, i think the questioning on the other side made that point clear. With respect to the argument regarding the threshold issues, i did want to make a point. She raised the cases that make clear that the court can choose among certain threshold issues, especially issues that go to the power of the courts. So for example, arguments that way the court has the power to recognize a cause of action in some cases, may constitute a threshold tissue. There are other statutory issues that sometimes go to the court to act. What steel co. And those cases say is outside of a jurisdiction or similar threshold issues why wouldnt help me understand, why wouldnt we woo think about the totten rule as being very similar to absolute immunity . Absolute immunity in the totten rule to the extent that you understand where cotton comes from, it seems to have a similar idea to absolute immunity. And of course the tenant v. Doe the court said we could use that as a threshold issue. Why wouldnt we think of absolute immunity in the similar light . Theres the totten rule im not sure either. The point being is that it seems to have a Similar Foundation. Why wouldnt that totten rule which the court said under steel co. We can reach that as a matter. Why wouldnt that fall under absolute immunity that seems to have a Similar Foundation . I think the concern the judge got at is immunity is an offense on the merits and ruling is considered the ruling beside a couple of cases for that in our in our opposition brief. And so so would the the totten rule would be the same way. Again, i think that was the subject of in dispute in tenant v. Doe. Its a hard issue. Im not trying to suggest theres an easy answer. Again, the standing case is very easy. The absolute immunity case, although we feel strongly about it, we recognize theres somewhat of a dirth of precedent on president ial immunity. Theres two cases. This case does we think is a lot closer to nixon than it is to clinton v. Jones. Which im happy to expound upon. The court to sum up my point, the court barely has appellate jurisdiction. I want to make one other point about the case being done. Even if this case were to go back, theres another lurking issue thats going to bring all these issues back to the forefront which is whether the rule 41, a1a1 dismissal was effective because it did not dismiss the action as a whole. It only dismissed some claims against the president as in individual capacity. That remains ainn issue we have the right to appeal. The rule talks about action. Later it talks about a claim and an action. So your point i think is well taken, is whether the rule is applicable only when theyre willing to dismiss the action. Correct. And in this case, you know, i think that there are others rules in the rules of civil procedure that specifically address adding or dropping claims or adding or dropping parties. It doesnt make sense to read rule 41 one thing you know from the case like mitchell v. Forsythe is that the extension of discovery and the extension of litigative proceedings is at odds with the whole purposes of immunity. The whole purposes of immunity are to get a case resolved at a relatively early stage rather than a relatively later stage, otherwise the value of the immunity is entirely lost. And to the degree that the District Court proceedings, the subject of remand go on and on and on, the value of the immunity drops down and down and down. And thats you have to look at this from the purposes of immunity, and the particular cogency of immunity when you bring an action against the president of the United States. The purposes of immunity dont just dissolve when the president of the United States is defendant. They are magnified. And thats, you know, thats what were talking about here. If i may respond briefly. Certainly. Yes, i think thats right. You disagree with that . No, no, but without disagreeing the point about the importance of this case involving the president , which we absolutely agree with, in which a number of our arguments on the various legal defenses go to. I mean, this is not the only context in which the Court Considers absolute issuesmmunity claims. Theres a real problem if theres going to be a decision that you need an explicit order addressing the climate which immunity is going to be made. That is going to effectively deny all the benefits of absolute immunity, and its going to run afoul of numerous Supreme Court precedents requiring courts to address immunity claims, especially absolute immunity claims at the earliest stage unless there are further questions. Thank you so much. Thank you, counsel. Well ask the clerk to adjourn the court by the end of the term signee die and come back to counsel. This Honorable Court stands adjourned. God save the United States and this Honorable Court