(Posted May 14, 2020) This sleepy corner of the appellate universe just erupted. The Supreme Court of Virginia hands down three published opinions today, and the Fourth Circuit announces the long-awaited rulings in DC v. Trump and In re Trump, argued in December. The federal opinions run to 143 pages, so it’ll take me some time before I can post comprehensive analysis; I’ll read the opinions so you won’t have to.

The Fourth Circuit decisions involve claims that the president is violating the Emoluments Clauses by operating a hotel in the District of Columbia while he’s in office. Both rulings are 9-6, with Judge Motz writing for the majorities; the court rules against the president both times. I’ll post analysis as I go along through the course of the day. I might even be able to get to the Virginia decisions, including a very interesting reversal of an immunity ruling from Dickenson County.


Fourth Circuit

Today’s two opinions stem from the same litigation. The District of Columbia and the State of Maryland sued the president in his official capacity, claiming that his operation of the Trump International Hotel, while he occupied the Oval Office, violated the two Emoluments Clauses in the U. S. Constitution. During the pendency of the case, the plaintiffs sought and obtained leave to add individual-capacity claims against the president for the same conduct.

The president moved to dismiss the claims on immunity grounds, among others. He claimed that he was not amenable to official-capacity suit for his official acts, and that he was absolutely immune from individual liability for those official acts.

The district court rejected the official-capacity defense in an order. That order also provided that the court would address the individual-capacity issue separately. But after several months without such a ruling, the court directed the parties – not including the president in his individual capacity – to start discovery.

The president responded by noting an appeal under the collateral-order doctrine. Although the district court hadn’t formally ruled on his individual-capacity defense, he contended that starting discovery effectively denied him that immunity. Well-established precedent holds that immunity like this protects a litigant from the burden of participating in legal proceedings, including discovery, and not merely from ultimate liability. A denial of immunity before trial deprives that defendant of the benefit of that defense.

A few days after that notice of appeal, and two days after the record arrived at the Fourth, the plaintiffs voluntarily dismissed their individual-capacity claims without prejudice to their ability to refile.

A panel of the Fourth Circuit unanimously ruled in favor of the president last year, but the court voted to rehear the case en banc. I was in Richmond to watch those arguments – I like being present for history – and today, after five months, we have rulings.

The first of these is D.C. v. Trump, the individual-capacity issue. A nine-member majority of the court rules that the appellate court lacks jurisdiction to consider the appeal, and therefore dismisses it. The majority finds that the district court never ruled on the claim of individual immunity, so there’s no final adjudication of that issue. The district court had twice promised that it would issue an order deciding that defense, but the president appealed before getting such a ruling.

Six judges dissent. Judge Niemeyer writes the principal dissent, joined by Judges Wilkinson, Agee, Quattlebaum, and Rushing. These dissenters view the district court’s actions as a conscious effort to thwart appellate scrutiny. They cite previous holdings that allowed appellate review where a district court refused to decide an immunity issue. This is such a case, they feel, and is ripe for adjudication.

On the merits, the dissenters would hold that the state and the district lacked standing to sue. They reject the Rule 41 dismissal because it came after the appellate court acquired jurisdiction, which bars further acts by the district court.

Judge Richardson dissents separately, and alone. He agrees that the district court’s actions constitute an effective rejection of the immunity defense. But rather than address standing, he would decide the appeal in a different merits ground: The president isn’t answerable personally for his official acts. He bases that position on a holding from 1867, where the State of Mississippi sought to enjoin President Andrew Johnson from enforcing Reconstruction legislation. The Supreme Court back then had held that a president’s official acts cannot give rise to individual liability. Judge Richardson contrasts this with Clinton v. Jones from 1997, where President Clinton was sued for unofficial acts (the conduct preceded his becoming president, so it couldn’t be official-capacity).

The majority has an answer for the dissents’ appellate-ripeness contentions: In the cases cited by Judge Niemeyer, the district court had expressly declined to rule on immunity. Judge Motz states that no one has cited any case where there was no such express refusal. And since there’s no such refusal here, there’s no final adjudication of the issue.

In reading these opinions, you’ll probably note something unusual in the principal dissent: It contains stinging critiques of the district court’s motives. I’m accustomed to seeing sharp rebukes of rulings that the appellate court finds unwise. But as I see it, jurists as a whole perceive themselves as being part of a fraternity. That’s why, for example, appellate advocates are best advised to avoid personal attacks at a trial judge when pressing an appeal. They don’t like it when we do that (so I never do it). Judge Niemeyer accuses the district judge of acting in a “deliberately dilatory and, more probably, manipulative” manner and “deliberately calculated to avoid appellate review ….” He concludes that, upon considering the whole record, “it becomes pellucidly clear that the district court was not interested in addressing the immunity question for fear of creating an immediately appealable order.”

No, this is not an invitation for you to ping the trial court on appeal. They have robes, so they can do that; you still shouldn’t.

On to today’s second decision, in In re Trump. As the caption indicates, this is a petition filed by the president. After the district court denied the president’s motion to dismiss (on four non-immunity grounds) in the primary litigation, the president moved the court to certify the case for immediate appellate review. The court declined that request.

The president then filed a petition in the Fourth Circuit for a writ of mandamus that would direct the lower court to go ahead and certify the interlocutory appeal. A Fourth Circuit panel granted that relief and issued an order directing the district court to dismiss the litigation on standing grounds. But again, the full court granted en banc review, leading to today’s opinion.

By the same 9-6 margin, the full court rules against the president. Judge Motz again pens the majority. She begins by noting that mandamus is truly extraordinary, and isn’t suitable for a short-cut appeal. She cites three criteria for its proper use:

  • No other adequate relief;
  • A “clear and indisputable” right to relief; and
  • Appropriateness of the relief requested, in the court’s discretion.

She then turns to the two grounds upon which the president sought mandamus relief. First, he invoked 28 U.S.C. § 1292(b), which expressly permits interlocutory appeals. But the court rules today that that requires an agreement by the district court and the circuit court that such an appeal is appropriate. It’s not enough that an appellate court may find that a given ruling was wrong, or even an abuse of discretion: “Mere disagreement with the district court … does not constitute evidence that the decision was based on ‘whim’ or that the district court usurped judicial power.”

The president’s second argument was that it was “clear and indisputable” that there is no right of action. But the DC Circuit has stated that the question whether a litigant can sue the president for an Emoluments Clause violation is “unsettled,” thus making it neither clear nor indisputable. And an Inspector General reported last year that the president’s operation of the hotel “was a possible violation” of the Clauses. In short, this is an open matter for litigation; today’s majority concludes that that litigation must play out in the district court.

Judge Motz then turns to the president’s contention that the separation-of-powers doctrine bars judicial review here. As the majority phrases it, this is an assertion that “no court can order the President to comply with the Emoluments Clauses.” Judge Motz concludes that the duty to obey the law, and specifically the Clauses, isn’t an official prerogative; everyone has to obey the law.

I’ll pause here for a historical comparison. During the litigation over the Watergate audiotapes, President Nixon’s lawyer, James St. Clair, appeared before US District Judge John Sirica to argue whether the president had to obey a subpoena. St. Clair, couching his phrasing to reflect his reluctance, told Judge Sirica, “The president wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.”

I’m not a separation-of-powers guru, by any means. But these arguments seem to me to be the same: The president need not obey the law unless he wishes to, and no Article III court can compel him to do so. In 1974, Judge Sirica rejected this bold argument, and the Supreme Court agreed, unanimously.

I hasten to add that the above doesn’t constitute a conclusion about the ultimate merits of the case. The president raises a strong argument about standing, one that the majority doesn’t reach, for understandable reasons. But Judge Motz rejects here the contention that no one can enforce the law against me, and in my view, she does so entirely correctly.

Let’s turn to the dissents. Judge Wilkinson begins, and if you’re a fan of his style, today’s opinion won’t disappoint. He finds the very presence of the underlying litigation to be so improper that mandamus is clearly and indisputable.

Judge Wilkinson posits a tough question that the majority never addresses: What form of relief is the district court supposed to grant here?

If it is the Trump Hotel that gives offense, are we to order its closure for the duration of the President’s term? Or are we to command divestiture of any presidential interest, beneficial or otherwise, notwithstanding the fact that divestment is traditionally disfavored in equity? Are we to place this single asset in some sort of not-so-blind trust? Are we to enjoin foreign dignitaries from patronizing the Hotel? Are we to bring in some third party to manage the Hotel’s ongoing operations? I have not the slightest idea.

He also questions whether the plaintiffs here – the state and the district – have suffered a cognizable harm, which again the majority declines to reach. He then expressly asserts that the majority’s judgment is an act of raw partisanship by the very judges who outvote him today. These are, indeed, strong and explosive accusations against one’s brethren and sistren on the same bench; but there are many more to come.

Judge Wilkinson decries what he sees as the modern tendency to resolve political questions in the courts instead of where they belong: in the ballot box. And he asserts that “the federal courts have never sustained an injunction against the President in connection with the performance of an official duty.” (Emphasis original) They have done so with presidential subordinates, but that’s distinction makes all the difference in the world to him. (For a Virginia parallel, consider Howell v. McAuliffe, in which the petitioners sought to enjoin the Governor of Virginia and several subordinates in connection with the re-enfranchisement of convicted felons. The Supreme Court of Virginia, in a highly fractured ruling, issued a mandamus writ against the Governor’s subordinates, but not to him.)

There are wry philosophical and even literary moments in Judge Wilkinson’s dissent. Here’s a particularly memorable one:

Even if we had the power to let this case go forward, prudence and any sense of judicial modesty should stop us from doing so. When faced with such an unprecedented case based on such tenuous constitutional grounds, we would do well to heed the ancient admonition against wanton abuse of judicial authority: “O, it is excellent / To have a giant’s strength; but it is tyrannous / To use it like a giant.” W. Shakespeare, Measure for Measure, act 2, sc. 2, lines 107-09. Not incidentally, the Great Bard was referring to a judge.

(I’ll interject a personal view here: The world is full of judicial opinions that cite Blackstone and Kent. But it’s always a special pleasure to see a reference to classic literature. This passage is a small sample of what makes Judge Wilkinson’s opinions enjoyable, even entertaining, to read. Just don’t expect beach reading.)

Judge Niemeyer’s turn comes next – because he’s the next most senior dissenter after Wilkinson; that’s how they line these up – and he again prods the district court for using what he sees as improper means to jury-rig a win for the states and the district, at the president’s cost. He echoes the standing problem that, he believes, should end the litigation. And he expressly calls on the Supreme Court of the United States to step in and correct what he sees as today’s string of errors.

On standing, Judge Niemeyer explores what he perceives as the key weakness of these plaintiffs’ suing. The thrust of this litigation is that the president enjoys a competitive advantage over other hotels and convention centers in the DC area, because of his status as president. Foreign and domestic visitors who seek to do business with the president, who curry his favor, predictably will choose to stay in the Trump International instead of competing hotels.

It’s a plausible thesis, but how does this harm governments? The plaintiffs offered three justifications, but this is the key one: “that the District and Maryland have a parens patriae interest in protecting their citizens from economic injury …” This won’t fly with Judge Niemeyer; again, recall that the majority never reaches this question, so we don’t have a judicial riposte to this thrust.

That’s the end of the dissents, but there’s one more opinion today, the shortest of the four. Judge Wynn pens a short (3½ pages) concurrence, joined by Judges Keenan, Floyd, and Thacker. He joins fully in the majority, but writes separately to address something I mentioned above. He sees inappropriate attacks by his dissenting colleagues, not just on the district judge but on the circuit judges in the majority. Here’s his thesis:

Editorial writers, political speechwriters, and others are free, of course, to make a career out of accusing judges who make decisions that they dislike of bias and bad faith. But the public’s confidence and trust in the integrity of the judiciary suffer greatly when judges who disagree with their colleagues’ view of the law accuse those colleagues of abandoning their constitutional oath of office.


The dissenting opinions abandon notions of judicial temperament and restraint by commandeering this case as a vehicle to question the good faith of judges and litigants that are constituent members of our Union.

Judge Wynn insists that the nine justices in the majority are doing their job as they see it; that they’re deciding only the question actually before the court (whether mandamus lies, and not whether the plaintiffs will eventually prevail on ultimate issues); that the majority decision is not, as the dissenters accuse, based on politics. This is a plea to judicial civility, something I’m not accustomed to seeing. But this litigation is itself unique, and seems to have inspired unique reactions.

No, this decidedly is not the end of the line. It’s highly likely that the president will take his two appeals across the Potomac and hope to get a friendlier reception at One First Street. That process assuredly will take us past November and even January. If the president is still in office next January 21, this case may still be relevant; if someone else occupies the Oval Office, I foresee a mootness dismissal.

Given the length of today’s opinions, I’ve given you the Reader’s Digest version of some issues and have skimmed others; for the full flavor, you’ll need to read them yourself. If you do that, see if you share Judge Wynn’s concern about intra-bench incivility. I believe he’s right: Even jurists shouldn’t resort to accusations of impropriety merely to strengthen a forceful legal point. The bench has long been a strong collective advocate for civility and professionalism among lawyers, and those unfortunate advocates who go too far may expect to be called down for it. When a jurist displays that kind of intemperate conduct, it sends a bad signal.


Supreme Court of Virginia

Let’s step across the corner of Capitol Square and see what the SCV hath wrought today. We’ll start in the far southwest – for your information, Virginia has a border with Kentucky, and Roanoke isn’t on it; I mean far southwest, as in Dickenson County – with Viers v. Baker. This is an interesting dispute between a prosecutorial assistant and a newly elected prosecutor. The assistant had worked in the office for 29 years. After the election, the assistant saw her future boss, congratulated him, and asked if she’d still have her job. He assured her that she would, and later repeated that to the administrative staff.

It didn’t last; on the fourth day of the new year, the new boss told the assistant that her work space was dirty, so she was fired. This came as a double surprise: Not only had he promised her continued tenure; cleaning her space wasn’t her job.

This firing didn’t go over well politically. The assistant and her husband were active Democrats, and the new Commonwealth’s Attorney was, too. The assistant was evidently well-liked within the local party, and some members started clearing their throats at the new officeholder.

At this point – assuming you believe the complaint, as the circuit court decided this case on demurrer – the prosecutor did a dumb thing. He decided to deflect blame by asserting, during a local party meeting, that he had fired the assistant because she had wiped his office computer, sort of cyber-stranding him. Again per the complaint, the truth was that the outgoing prosecutor had disabled his old password; when his successor called for help, the outgoing CA told him how to set up a new one. The problem was quite temporary, and it wasn’t the assistant’s fault at all.

You should know that tampering with a computer is a crime, and the new officeholder had just told several party faithful that the now-fired assistant was a crook. She sued for defamation and intentional infliction of emotional distress. A circuit court sustained the prosecutor’s judicial-immunity defense based on federal law (Imbler v. Pachtman, 1976) holding that a prosecutor shares judicial immunity and can’t be sued for exercising his official duties. The court dismissed the litigation in its entirety.

The Supreme Court today reverses the dismissal of the defamation claim. The trial court was wrong to turn to federal law, which doesn’t apply here. Under state law, a prosecutor gets the benefit of the James v. Jane test for immunity; but he isn’t absolutely immune as in federal court. The statement allegedly made at the party meeting wasn’t in furtherance of a prosecution, so this doesn’t fit within Virginia’s immunity jurisprudence. That means that the plaintiff gets to see a jury.

The court affirms the dismissal of the intentional-infliction claim. That has four prongs, and the court goes straight to prong 2, ruling that the prosecutor’s conduct, while perhaps ill-advised, wasn’t “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”


Next, in Padula-Wilson v. Landry, the justices take up a case with domestic-relations origins, but one that didn’t come up directly through the Court of Appeals. This is another defamation claim, and this one includes claims that a guardian ad litem and several experts in a custody case tortiously interfered with a mother’s relationship with her three children.

In the context of custody proceedings during a divorce case, a circuit court appointed a guardian ad litem and some healthcare professionals to evaluate the parents and their relationships with their children. Ultimately, these professionals recommended to the court that the father have custody and the mother have only supervised visitation. The mother appealed; the Court of Appeals remanded; and the circuit court granted joint physical and legal custody to both parents.

The mother then filed a tort action against all of the professionals, claiming that they tortiously interfered with her relationship with her children, and that one of the healthcare professionals had defamed her in his report. The circuit court sustained demurrers and dismissed the complaint, finding that tortious-interference didn’t cover this situation; that the proper place to challenge in-court testimony is during the trial, not afterward in tort litigation; and that the circuit court’s ultimate joint-custody order made the whole thing moot.

The mother appealed to the Supreme Court, which granted a writ. Today, the justices unanimously affirm. The Supreme Court agrees with the circuit court that the doctrine of tortious interference doesn’t apply here. No one took the mother’s children away wrongfully, and she received full due-process rights in the custody trial. Fundamentally, “no cause of action for tortious interference with a parental or custodial relationship may be maintained against a guardian ad litem or an adverse expert witness based upon his/her expert testimony and/or participation in a child custody and visitation proceeding.”

For what it’s worth, this ruling makes eminent sense. A disgruntled litigant has an avenue available – that’s what appellate lawyers are for – and suing adverse witnesses is no way to run a civil-justice system. And as Justice McCullough’s opinion observes, “dragging mental health professionals and guardians ad litem into court for their role in a custody and visitation case would be highly detrimental to the process.”

The court also affirms the dismissal of the defamation claim against one of the healthcare professionals. The circuit court had ruled that the statements were privileged, so the mother couldn’t sue on them. The justices today affirm on an alternate ground, finding that each statement identified in the complaint was a matter of opinion. Because that suffices to defeat the defamation claim, the court decides not to take up the trickier question of privilege.