Constitutional Law

En banc 4th Circuit revives emoluments lawsuit against Trump

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The en banc 4th U.S. Circuit Court of Appeals at Richmond, Virginia, has revived a lawsuit claiming that President Donald Trump is violating the Constitution’s ban on presidents accepting emoluments from foreign states.

In a pair of 9-6 decisions Thursday, the appeals court allowed a lawsuit filed against Trump by the state of Maryland and Washington, D.C., to proceed. The suit claims that Trump violated the emoluments clause when his Washington, D.C., hotel accepted money from foreign officials.

The Washington Post, Politico, and the New York Times have coverage.

The decisions said Trump had not established a right to an appeal before the final decisions on legal issues by the trial court hearing his case.

A three-judge panel had tossed the suit last July on the grounds that the plaintiffs did not have standing.

One of the decisions by the appeals court, In re Trump, said Trump had not established a right to a writ of mandamus to bring the case to the 4th Circuit. Trump was asking the appeals court to resolve several issues, including the correct interpretation of the term “emolument” and whether the plaintiffs had standing.

A writ of mandamus, which seeks an appeal before a final judgment at the district court level, is a drastic remedy appropriate only in extraordinary circumstances, the en banc majority said. Trump did not clear that bar, according to the court. Nor does separation of powers require granting the writ, according to the majority opinion by Judge Diana Gribbon Motz.

“The dissenters embroider on the separation of powers argument, maintaining that no court can order the president to comply with the emoluments clauses,” Motz wrote.

But Trump did not have unreviewable power, Motz said.

“To hold otherwise would mean that the president alone has the ultimate authority to interpret what the Constitution means,” she wrote.

The second decision, District of Columbia v. Trump, said Trump was not entitled to an appeal on his right to immunity from suit in the absence of a ruling on the issue by the district court. Trump had argued that the lower court had effectively ruled against him by failing to decide the issue for seven months.

A dissent to the first decision by Judge J. Harvie Wilkinson III said the emoluments case should not be in federal court.

“The majority is using a wholly novel and nakedly political cause of action to pave the path for a litigative assault upon this and future presidents and for an ascendant judicial supervisory role over presidential action,” he wrote.

A lawyer for Trump, Jay Sekulow, said Trump will seek Supreme Court review.

“We disagree with the decision of the Fourth Circuit,” Sekulow told Politico via a text message. “This case is another example of presidential harassment.”

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