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District of Columbia v. Trump

United States Court of Appeals, Fourth Circuit

July 10, 2019

DISTRICT OF COLUMBIA; STATE OF MARYLAND, Plaintiffs - Appellees,
v.
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

          Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:17-cv-01596-PJM)

         ARGUED:

          William S. Consovoy, CONSOVOY MCCARTHY PARK PLLC, Arlington, Virginia, for Appellant.

          Leah J. Tulin, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.

         ON BRIEF:

          Patrick Strawbridge, Boston, Massachusetts, Thomas R. McCarthy, Bryan K. Weir, Cameron T. Norris, CONSOVOY MCCARTHY PARK PLLC, Arlington, Virginia, for Appellant.

          Brian 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.

          Carrie 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.

          Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit Judge.

          NIEMEYER, CIRCUIT JUDGE.

         The 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.

         As 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 to dismiss."

         Because 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 ...


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