DISTRICT OF COLUMBIA; STATE OF MARYLAND, Plaintiffs - Appellees,
DONALD J. TRUMP, President of the United States of America, in his individual capacity, Defendant-Appellant. SCHOLAR SETH BARRETT TILLMAN; JUDICIAL EDUCATION PROJECT, Amici Supporting Appellant, FORMER GOVERNMENT ETHICS OFFICERS; DON FOX; MARILYN GLYNN; KAREN KUCIK; LAWRENCE D. REYNOLDS; AMY COMSTOCK RICK; TRIP ROTHSCHILD; RICHARD M. THOMAS; HARVEY WILCOX; LESLIE WILCOX, Amici Supporting Appellees.
Argued: March 19, 2019
from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
William S. Consovoy, CONSOVOY MCCARTHY PARK PLLC, Arlington,
Virginia, for Appellant.
J. Tulin, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellees.
Patrick Strawbridge, Boston, Massachusetts, Thomas R.
McCarthy, Bryan K. Weir, Cameron T. Norris, CONSOVOY MCCARTHY
PARK PLLC, Arlington, Virginia, for Appellant.
E. Frosh, Attorney General, Steven M. Sullivan, Solicitor
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland; Karl A. Racine, Attorney General, Loren
L. AliKhan, Solicitor General, Stephanie E. Litos, Assistant
Deputy Attorney General, Civil Litigation Division, OFFICE OF
THE ATTORNEY GENERAL OF THE DISTRICT OF COLUMBIA, Washington,
D.C.; Noah Bookbinder, Laura C. Beckerman, Nikhel S. Sus,
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,
Washington, D.C.; Deepak Gupta, Joshua Matz, Daniel Townsend,
GUPTA WESSLER PLLC, Washington, D.C.; Joseph M. Sellers,
Christine E. Webber, COHEN MILSTEIN SELLERS & TOLL PLLC,
Washington, D.C., for Appellees.
Severino, JUDICIAL EDUCATION PROJECT, Washington, D.C., for
Amicus Judicial Education Project. Robert W. Ray, THOMPSON
& KNIGHT LLP, New York, New York; Josh Blackman, Houston,
Texas, for Amicus Scholar Seth Barrett Tillman. Jan I.
Berlage, GOHN HANKEY & BERLAGE LLP, Baltimore, Maryland,
for Amici Scholar Seth Barrett Tillman and The Judicial
Education Project. Tejinder Singh, GOLDSTEIN & RUSSELL,
P.C., Bethesda, Maryland, for Amici Former Government Ethics
Officials, Don Fox, Marilyn Glynn, Karen Kucik, Lawrence D.
Reynolds, Amy Comstock Rick, Trip Rothschild, Richard M.
Thomas, Harvey Wilcox, and Leslie Wilcox.
NIEMEYER and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior
NIEMEYER, CIRCUIT JUDGE.
District of Columbia and the State of Maryland commenced this
action against Donald J. Trump in his official capacity as
President of the United States and in his individual
capacity, alleging that he violated the Foreign and Domestic
Emoluments Clauses of the U.S. Constitution. This action is
the same as that which we address in appeal No. 18-2486, also
decided today, and is governed by the same complaint. In No.
18-2486, we address the President's motion to dismiss
filed in his official capacity, which is presented
to us through the President's petition for a writ of
mandamus. And here, we address the President's motion
filed in his individual capacity, which raises the
additional issue of whether the President has absolute
immunity and which is presented to us by appeal.
described in more detail in appeal No. 18-2486, the district
court treated the President's motion to dismiss filed in
his official capacity with multiple opinions, but it never
ruled on the President's motion filed in his individual
capacity and thus never addressed his claim of absolute
immunity. Rather than ruling, the court, by order dated
December 3, 2018, directed the parties to proceed with
discovery. The President has thus noticed this appeal from
"the District Court's effective denial of his motion
there was no decision expressly denying immunity, the
District and Maryland filed a motion in this court to dismiss
the appeal, contending that there is "no basis for
appellate jurisdiction." In addition, because they filed
a notice of voluntary dismissal of their claim against the
President in his individual capacity in the district court
after this appeal was docketed, they argue that this appeal
is moot. The President contends, however, that the district
court's inaction on his motion, coupled with its order to
proceed with discovery, had the effect of denying his claim
of immunity and thus giving him the right to appeal
immediately. He also contends that the District and
Maryland's purported dismissal in the district court was