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Currently the State of Maryland and the District of Columbia are pursuing a case against the President of the United States regarding alleged violations of the emoluments clause.

As described by Justice Department:

The Solicitor General of the United States has authorized the filing in the U.S. Court of Appeals for the Fourth Circuit of a petition for writ of mandamus against this Court’s orders declining to dismiss the case and to certify an interlocutory appeal, as well as an application for a stay of District Court proceedings pending resolution of the mandamus petition.

Is there precedent for this type of use of the writ of mandamus? Under what circumstances is this normally used?

  • An aside on my opinion (to keep it separate from the question): it seems like this basically amounts to Justice saying: the judge disagreeing with dismissal amounts to not doing their job properly. Which seems pretty out there as a legal argument. But perhaps I'm misunderstanding what is meant by a writ of mandamus? – Dan Bryant Dec 3 '18 at 19:24
  • My answer probably made this clear, @bdb484 is accurate in stating that "This isn't really an "out there" legal argument, but some people would think it fairly bold, as it is a bit more aggressive than waiting for an appeal and calls more attention to a supposed error made by the judge who's going to be deciding your case." – ohwilleke Dec 3 '18 at 23:50
  • @ohwilleke, If I'm interpreting correctly, it sounds like the likely tactical goal is to delay the start of a trial and the attendant Discovery process, as this is of greater concern politically than whether the judge is irked by the petition, given that current precedent means the case would likely end up needing to be appealed anyway. – Dan Bryant Dec 3 '18 at 23:58
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    Not really. It takes at least a year, and often longer, for a case to go to trial in federal court. The goal is to swiftly shut the case down based upon a theory that the trial court and 4th Circuit rejected, but that the U.S. Supreme Court is likely to be favorable to with its new membership. The lawyers seeking the writ want to avoid having to slug through litigation that could take a substantial part of the rest of President Trump's first term, so that it is not hanging over Trump's head, while facing little downside risk for the President if SCOTUS declines to rule right away. – ohwilleke Dec 4 '18 at 0:06
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Writs of Mandamus Are A Recognized Procedural Tool In the Federal Courts

Is there precedent for this type of use of the writ of mandamus?

Yes.

It needs to be understood against the background rule of civil procedure that a party can only appeal a final judgment of a trial court, and cannot appeal an order entered by a trial court prior to entry of a final judgment.

For example, the denial of a party's request that a motion to dismiss a case, or a motion for summary judgment be entered, which forces the claim at issue in the motion to be resolved following an evidentiary hearing or trial, rather than summarily earlier on in the case, is not an appealable order (subject like almost everything in the law to a few narrow exceptions, e.g., for a denial of a law enforcement officer's claim of qualified immunity in a civil rights case, and for preliminary injunctions).

At the federal level, writs of mandamus have not been abolished as a means of securing an interlocutory appeal of a lower court ruling, but some alternative means of obtaining interlocutory appeals have been authorized by statute, and a writ of mandamus is only available where alternative remedies are not available. The route of last resort is a writ of mandamus. But, there are also other exceptions, a couple of more common of which including the following ones.

Sometimes it isn't clear if a judgment is final or not, or a judgment is final against one party or on one issue, and not against other parties in the case or on other issues, and there is no good reason to delay an appeal against the one party against whom a final judgment has been entered. In those cases, a trial court, may, but is not required to certify the partial judgment as final, allowing an immediate appeal. Fed. R. Civ. P. 54(b).

There is also another kind of discretionary appeal by statute in federal court and this is what the government is claiming that the lower courts abused their discretion in not providing. This statute is 28 U.S.C. § 1291(b), which provides that:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

Writs of mandamus in the federal courts are another means by which interlocutory relief can be granted (in addition to compelling public officials to take non-discretionary actions) which are authorized by the All Writs Act which is "28 U.S.C. § 1651, which authorizes the United States federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

Many states have replaced the writ of mandamus with statutory rights to interlocutory appeals or with specific civil rules that replace the previous common law writs.

For example, in Colorado, writs of mandamus directed at public officials other than judges and at judges in trial courts of limited jurisdiction have been superseded by Colorado Rule of Civil Procedure 106 and writs of mandamus directed at general jurisdiction trial courts have be superseded by Colorado Appellate Rule 21.

Writs of mandamus in the U.S. Supreme Court are also governed by Federal Rule of Civil Procedure 21, but the federal rule retains the historic "writ of mandamus" terminology (in part to make it easier to search old precedents that used the old common law writ terminology and in part to keep the rule clearly within the authority granted by the All Writs Act).

The use in question has been around pretty much as long as the federal court system, although it isn't terribly common, and writs of mandamus, when filed, are frequently denied.

Historically, a writ of mandamus was treated as a lawsuit in the higher court by the aggrieved party seeking to appeal the lower court judge's decision prior to a final order against the judge in the judge's official capacity.

Most jurisdictions no longer structure interlocutory appeals in this way because it is an irritation for a judge who is applying for a loan to have lots of lawsuits against him or her in the public record that aren't really lawsuits against the judge personally, even though they superficially look like it when one does a simple party search of court records.

Writs Of Mandamus Are Used When Other Options Provide Inadequate Relief

Under what circumstances is this normally used?

At common law, before there was statutory authorization for interlocutory appeals (i.e. appeals before a final judgment on the merits is entered in a case, usually following a trial or ruling on a summary judgment motion that resolved all pending claims), a writ of mandamus was the only means by which appellate relief could be obtained before trial.

Typically, a writ of mandamus was sought in circumstances where a failure to address the order appealed would make it an uncorrectable fait accompli once a trial was conducted (e.g. an appeal of an order requiring someone to disclose allegedly attorney-client privileged information), the negative consequences of the order are material, and there is no statutory alternative means by which to obtain interlocutory relief. More precisely:

interlocutory appeals are permissible in a small category of cases where the decision being sought for appellate review:

– (1) Conclusively determined the disputed question;

– (2) Resolved an important questions separate from the merits of the action; and

– (3) The decision is effectively unreviewable on appeal from the final judgment in the underlying action.

See, e.g., Hallock v. Bonner, 387 F.3d 147 (2d Cir. 2004).

The decision to grant this relief is discretionary and the court receiving a writ of mandamus is not required to resolve the issue presented to it on the merits.

Application To The Case Identified In The Question

In the case of "a petition for writ of mandamus against this Court’s orders declining to dismiss the case and to certify an interlocutory appeal," the main procedural issue is whether the statutory remedy provided in cases where an interlocutory appeal can be certified to the 4th Circuit Court of Appeals was intended to abolish the common law writ of mandamus (which is not something that is constitutional in nature even though it is so ancient), in this situation by providing an alternative remedy.

The government is probably arguing in this writ application that emoluments clause litigation is prohibited by Presidential immunity, and that even though they don't fall within the letter of the law authorizing an interlocutory appeal as a matter of right, that the litigation itself over the emoluments clause litigation against the President poses such a distraction to the conduct of the Presidency, that the purpose of Presidential immunity would be undermined by allowing the trial court lawsuit to go forward, even though a ruling against the President in this case could be appealed when and if a judgment is entered against the President on the claims presented in the case (logical quite similar to the reason that interlocutory appeals of denials of claims of qualified immunity in civil rights lawsuits are allowed).

The government is probably also arguing that enforcement of the emoluments clause should be considered a "political question" that can only be enforced by Congress, for example, via impeachment, in which case the trial court would not have subject matter jurisdiction to consider the case. And, a lack of subject matter jurisdiction is a matter which is often a grounds for granting a writ of mandamus.

The argument against granting a writ of mandamus is that the appellate courts shouldn't micromanage the pre-trial process in trial courts, that most of the distraction can be handled by lawyers for the President without interfering much with the President's day to day conduct of his office, and that the distractions caused by a civil lawsuit arising out of the business interests of someone who is the President are a risk that the President assumed when he took office without selling his business assets or putting them in a blind trust.

Previous cases in the Nixon and Clinton administrations established that Presidential immunity does not provide a blanket prohibition upon lawsuits against a President while the President is in office.

The case involving Clinton, Clinton v. Jones, 520 U.S. 681 (1997), established that a subpoena for a deposition in a private lawsuit unrelated to the President's duties or conduct in office in any way could go forward while the President was is in office, and his testimony in that deposition would later become the lynch pin of an unsuccessful effort to remove him from office via impeachment.

The case involving Nixon, United States v. Nixon, 418 U.S. 683 (1974), which upheld the enforceability of a Watergate related subpoena is more clearly on point as it held that a President could be compelled to comply with a subpoena in a case that arguably had some relationship to his Presidential role and duties, although it was not cut and dried and Nixon's resignation made this largely a moot point.

Both of these cases are controversial in conservative legal circles, and Brett Kavanaugh, recently confirmed as a justice of the U.S. Supreme Court, has gone on record stating that Presidential immunity has been too narrowly construed by the courts and that these U.S. Supreme Court precedents should be overturned or modified by the U.S. Supreme Court.

The lawyers bringing the writ of mandamus in this action know that President Trump is unlikely to prevail in his arguments to dismiss or stay emoluments clause litigation (which is why he lost on that argument in the trial court and why the 4th Circuit refused to consider his interlocutory appeal) under the existing U.S. Supreme Court precedents described above, but might prevail and secure a narrowing of these precedents in the U.S. Supreme Court with its new solidly conservative majority.

Even if the U.S. Supreme Court did deny the writ of mandamus, this wouldn't preclude the U.S. Supreme Court from later holding on a better developed trial court record, if and when the trial court ruled on the merits in the case, that Presidential immunity barred the lawsuit, contrary to the ruling of the trial court on this legal issue, if the 4th Circuit upheld a trial court's judgment against President Trump.

Doing so would allow the U.S. Supreme Court to postpone having to resolve a politically sensitive issue of constitutional law that might never end up reaching them at all depending upon how the case plays out. And, this is what the U.S. Supreme Court usually does when it can. So, the U.S. Supreme Court needs to really feel strongly that interlocutory relief is the only adequate remedy in order to rule in the President's favor on this writ of mandamus petition.

  • Thanks, this has helped me a lot to better understand some of the news coverage of this case. The layman descriptions of the writ of mandamus I found did not really explain how it fit into the federal appeals process. – Dan Bryant Dec 3 '18 at 23:30
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Broadly speaking, a writ of mandamus is a court order to a government official to do its job properly, typically by performing some nondiscretionary task.

It is commonly sought against officials in the executive branch, where there is not always a clear process for appealing a decision to take or not take some action. In the judiciary, there's nearly always the possibility of an appeal, so mandamus is not particularly commonly granted against a judge.

There is, however, plenty of precedent for writs of mandamus against courts. One example that quickly comes to mind is Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). In that case, a trial court barred the press from a murder trial. A newspaper challenged the order closing the courtroom, but the judge refused to let reporters in. The paper sought a writ of mandamus ordering the court to permit coverage of the case, and the U.S. Supreme Court granted the writ.

In this case, the government is arguing that the court abused its discretion by refusing to allow an appeal before letting the case go forward. This isn't really an "out there" legal argument, but some people would think it fairly bold, as it is a bit more aggressive than waiting for an appeal and calls more attention to a supposed error made by the judge who's going to be deciding your case.

When it comes to writs of mandamus sought against courts, I would say that these two types of cases -- access to hearings and denials of appeal -- probably account for the bulk of the action. When it comes to the second category, I suspect that most are denied, because doing this without committing a fatal procedural error can be fairly tricky. If you're interested in more about how mandamus works in this context, there's a pretty decent explainer from Wiggin & Dana.

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