President Donald Trump has yet to win a round in the emoluments case brought against him by Maryland and D.C.’s attorneys general for unconstitutionally profiting while in office. That doesn’t mean he’s learned his lesson.
Trump’s latest ploy, a petition for a writ of mandamus asking a federal appellate court to big-foot the district court hearing the case, is a sweeping waste of government resources, from the efforts of Department of Justice lawyers tasked with crafting the petition to the hours invested by the state attorneys general and the district and appellate courts stuck dealing with Trump’s desperate measures.
What is mandamus? A legal trump card, so to speak. A writ of mandamus is a means of getting the judiciary to order a federal officer or agency “to perform a duty owed to the plaintiff,” aka the party requesting the writ. In most cases, it’s an action that goes before a federal district court. But when it’s the district court that’s being ordered to comply, the claim is directed at the federal appellate court under which it’s situated.
Trump’s brief is beyond weak.
Trump concedes there’s never been a proceeding of this nature under the emoluments clauses, but then insists that this case involves a “controlling question of law as to which there is substantial ground for difference of opinion.” A difference of opinion requires divergent strains of precedent or some potential conflict among rulings. Here, as Trump acknowledged, there’s no precedent at all to wield against the district court.
The only precedent that exists kneecaps Trump’s outrageous legal maneuver. In 2004, in a case involving the Bush administration (Cheney v. US Dist. Court for D.C.), the Supreme Court slapped back a mandamus challenge quite similar to Trump’s, in so doing affirming a Nixon-era SCOTUS decision. Even where the court’s granted permission for “overly broad” discovery, it’s on the defendant—even when the defendant is POTUS—to object to specific elements of discovery as, for example, violative of executive privilege.
Only after Trump has exhausted other means of contesting discovery can he take the issue to higher courts. “So long as the separation-of-powers conflict remained hypothetical,” wrote the Supreme Court in 2004, the justices “had no authority to exercise the extraordinary remedy of mandamus.”
Trump’s attempts to bend this precedent to his favor fail abruptly.
He claims that mandamus is justified because immediate appeal “may materially advance the ultimate termination of the litigation.” It’s a nonsensical claim in isolation: Any appeal could end a legal dispute more quickly than it would be resolved if it stayed in the district court. The claim is doubly absurd when contextualized vis-á-vis Nixon and Cheney.
The Fourth Circuit, to which the petition for a writ of mandamus has been directed, isn’t going to depart from clear precedent. And while the conservatives of the Roberts court have proven willing to abandon principles to toe a political line—hello, Citizens United—it’s unlikely that they’d do so at this juncture in the emoluments case. No matter how politicized, jurists aren’t going to risk their reputations by bucking clear precedent that doesn’t hurt Trump’s case, but simply requires him to battle out his discovery objections in district court.