What is Involved in Constitutional Litigation

While this is technically not a legal blog, some of us are actually lawyers with day jobs. So, with that in mind, I thought that this particular case presented a “teachable moment” and, since everyone is “distance learning” nowadays, I thought I’d write it up and share.

As some of you know, I’m generally reluctant to discuss precisely what I do for a living.  When pressed, I usually say something vague like, “I practice Constitutional Law,” or “I advise and litigate constitutional disputes on behalf of the US House of Representatives.”  This usually requires a change in topics because, unless I’m talking with fellow lawyers (or people who spend a lot of time around lawyers), they don’t really know what to ask next.  If I’m being totally honest, part of my reticence is because it’s very difficult to explain what the actual practice of constitutional law is like.  Many people think that constitutional lawyers just sit around reading old books and arguing about what arcane phrases like “due process of law” and “free exercise of religion” meant in 1787.  Don’t get me wrong, that’s partially true—there is a lot of reading old books and trying to divine meaning from esoteric groupings of words written on parchment paper with quill pens—but that’s far from the whole story. 

From time to time, some of these cases actually see the inside of a courtroom, but not in the sense of what one might see on Law and Order, Perry Mason, or your run-of-the-mill TV legal dramatization.  No, these cases take place mostly on paper, reams and reams of paper, with complex factual and legal arguments that are very different than your typical civil lawsuit or criminal case.  Usually, when people think of “civil litigation,” they think of tort claims, like auto accidents, medical malpractice, or maybe product liability class action suits (think of the cases in the movies “Erin Brockovich” or “A Civil Action”).  While those examples are closer to the truth, they still leave a lot to be desired.  Most constitutional cases rarely reach what lawyers call “the merits,” i.e., who was right and who was wrong.  Rather, they are frequently decided on procedural questions that have a profound impact on the way that the Constitution is interpreted.  Such cases are often hard for journalists to report on accurately, largely because they do not lend themselves to simple soundbites and pithy headlines. 

Recently, the Fourth Circuit Court of Appeals in Richmond, Virginia, issued an opinion that is a textbook example of the kind of things I frequently deal with in my professional life.  It’s high profile enough that it’s gotten a fair amount of press attention, so I thought I would use it as a case study both of how the constitutional civil litigation process works, and of why most people have come to hate lawyers, especially ones like me. 

Let’s start at the beginning.  How do cases like this get started?  Well, like all cases they start with the filing of a document called a “Complaint,” which is a description of the dispute and a recitation of the factual and legal allegations by the Plaintiff against the Defendant(s).  Now, there is an old saw amongst lawyers that says, “in America you can sue anyone,” which, while technically true, isn’t really 100% accurate.  To file a “Complaint” in federal district court costs $450.00.  So, anyone who can pony up that money (or prove themselves indigent so that they qualify for a fee waiver) can indeed “sue” someone.  The ability to file a suit doesn’t ensure the Plaintiff that it is going to be heard, much less decided “on the merits.”  Federal Courts are known as courts of limited jurisdiction, meaning they only have the power to hear certain types of cases. (This is as opposed to some state courts, which are called courts of general jurisdiction, meaning they can hear any type of case.)  Accordingly, they have developed an entire body of law to prevent cases from proceeding (which we will talk about later).  For now, the first step is the filing of the Complaint.

In this case—initially filed in 2017, in the District Court for the District of Maryland, located in Beltsville, Maryland, just outside of Washington DC—the plaintiffs are the District of Columbia and the State of Maryland, who are suing the President of the United States in his official capacity alleging violations of the Emoluments Clauses of the Constitution.  Specifically, they allege that the President is violating both of the Emoluments Clauses of the U.S. Constitution by accepting prohibited “emoluments” from foreign and domestic governments. 

Just so everyone is on the same page:  The Foreign Emoluments Clause provides that:

 “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” U.S. Const., Art. I, § 9, cl. 8.

The Domestic Emoluments Clause provides:

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.  U.S. Const., Art. II, § 1, cl. 7.

In their Complaint, Maryland and DC advance several theories about how the President is violating the Constitution, among them are the fact that the President continues to have a direct stake in his private hotel business, which includes the Trump International Hotel in Washington DC (the Hotel), located just blocks from the White House.  In addition, DC and Maryland claim that since the 2016 election, numerous foreign governments, and at least one State Government, have patronized the Hotel, some of whom have indicated that they have done so to curry favor with the President.  Similarly, it is alleged that some foreign governments have withdrawn business from other area hotels and transferring to the Hotel associated with the President.  Finally, it is alleged that goods and services at the Hotel have been marketed at a premium level since the election and that a portion of the proceeds, particularly expenditures by foreign governments, have been passed through to the President.

Standard practice in suits involving federal government official, such as the President, Vice President, federal agencies, Members of Congress, Senators, etc., is that the defendant(s) file what is known as a motion to dismiss.  Typically, motions to dismiss are attempts to demonstrate to the Judge that the case does not belong in court for purely legal reasons and/or that the case has no merit, meaning that no matter what the Plaintiff says or does, they cannot possibly prevail.  Motions to dismiss are frequently successful in federal courts, especially in suits naming elected officials.  Motions to dismiss rarely reach the “merits” of a dispute.  They do not usually require the Judge to determine whether what was alleged to have happened actually did, nor are they intended to resolve the factual questions of the dispute.  Usually, they are resolved on what we lawyers call procedural or “jurisdictional” grounds, in other words without any consideration of the underlying facts. 

Here, the Department of Justice (DOJ), on behalf of the President, moved to dismiss the complaint.  DOJ advanced two basic arguments against DC and Maryland.  First, as they almost always do, DOJ argued that the case was not eligible to be decided because DC and Maryland lack “standing to sue.”  Second, DOJ argued that, even if there was “standing,” the type of transactions involved were not “emoluments” as the word was understood at the time of the drafting and ratification of the Constitution.

A very quick explanation of the doctrine of standing.  First, contrary to some beliefs, standing is not a new requirement; rather, has existed since the adoption of the Constitution.  Basically, as mentioned above, federal courts are courts of limited jurisdiction, specifically, Article III of the Constitution sets forth the types of cases that can be heard and among those requirement is the one to exercise the judicial power of the United States there must be a “case or controversy.”  To establish that such a “case or controversy” exists, the Supreme Court, through literally hundreds of cases over its history, has developed law that requires parties bringing suits before federal judges to demonstrate that the Court has the authority to decide the dispute.  To establish “standing” a plaintiff must show that he/she has suffered (i) an “injury-in-fact,” (ii) that was caused by the defendant, and (iii) that the Court as the power to redress.  A lot of constitutional cases are resolved on standing grounds because the Supreme Court in recent decades has been raising the bar for demonstrating standing and, thereby, making it harder for cases to proceed.  Standing arguments were particularly well suited for this case because, as a result of some of these cases, it is notoriously difficult for States like Maryland (and for purposes of this discussion DC, which, while not a “State,” is treated like one in these instances) to establish the necessary elements, particularly injury in fact.

After considering the parties’ lengthy briefs and holding not one, but two, oral arguments, the district court issued two thorough opinions.  In the first opinion, the court denied the President’s motion to dismiss, in part, which effectively narrowed the case to claims related solely to the President’s alleged violations at the Trump International Hotel in Washington, D.C.  In its second opinion, the district court disagreed with DOJ’s view on what constitutes an “emolument,” holding that the type of transactions involved here qualified as emoluments under the Constitution.  The district court did not address whether the emoluments were lawful or not, nor whether what the President was doing was consistent with the Constitution.  Rather, the court simply addressed the arguments made by the parties, reserving the remaining legal questions for future proceedings.

So far, the above has followed the course of a pretty typical civil suit.  Now, here’s where things get interesting, and somewhat confusing.  Normally, when a district court denies a motion to dismiss, the case proceeds to what is known as “discovery.”  This is the fact gathering stage of civil litigation where the parties are required to exchange documents and question witnesses in preparation for a courtroom trial.  Think of images from movies of storage facilities full of documents that have never been organized.  In the TV and movies, the discovery phase is routinely skipped over and people are left with the impression that cases go from filing to trial in a matter of days or weeks.  The reality is quite the opposite.  Discovery is both time consuming and expensive.  It can last for years and, not infrequently, is where many cases are won and lost.  Constitutional cases usually don’t require as much discovery as say a product liability case or a environmental damages claim, but there are typically some records that need to be reviewed and a few people to depose.  Even in such cases, discovery can take months or even a year.  In this instance, the Plaintiffs were likely going to seek the detailed financial records for the Hotel and potentially other highly desirable business records related to the President.  The discovery process is likely to take time due to expected arguments over the production of many of these documents.

Cynically, as a way to avoid the mess of discovery, but also because they honestly believed that the district court’s decisions were wrong, DOJ took the unusual, but permissible, step of trying to appeal the partial denial of its motion to dismiss.  Normally, only “final” judgments, or judgements that resolve a case in its entirety can be appealed.  However, there is a way to get an appeal in the middle of a case.  These types of appeals are known as “interlocutory appeals” or “1292(b) appeals” are permitted by federal statute, 28 U.S.C. § 1292(b).  To get one, DOJ required both a certification from the district court judge and permission from the Court of Appeals.  DOJ sought an interlocutory appeal of four questions: (1) the correct interpretation of the term “emolument”; (2) whether DC and Maryland had an equitable cause of action to bring the suit; (3) whether DC and Maryland had Article III standing; and (4) whether any court has the ability to issue equitable relief against the President in these circumstances.

Somewhat predictably, the district court declined to certify an interlocutory appeal.  In part because interlocutory appeals are inefficient and rare, the standard a party must show to get one is high.  Given that its client is the United States, specifically the President and the Executive Branch, DOJ can usually satisfy the heightened standard, but not always.  Here, the district court concluded that resolution of the questions presented by the President did not satisfy the statutory prerequisites.  Having had its request denied by the district court, the case was once again primed to move to the discovery phase.    

Undeterred, likely fearing discovery, and presumably still convinced that the district court was wrong to deny its motion to dismiss, DOJ decided to bypass the district court altogether and deal directly with the Fourth Circuit Court of Appeals.  In an exceedingly rare move, DOJ asked the Court of Appeals to issue a writ of mandamus.  The writ of mandamus is one of the oldest writs in western jurisprudence.  Simply put, a writ of mandamus is order from a court to an inferior government official mandating that the government official either properly fulfill their official duties or correct an abuse of discretion.  Here, the appellate court would be ordering the inferior district court to correct its error.  Specifically, DOJ asked the Court of Appeals to order the district court either to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), or to reverse its decision on the motion to dismiss and find for the President, thereby ending the lawsuit.  

A three-judge panel of the Fourth Circuit Court of Appeals granted DOJ’s petition for a writ of mandamus and, purportedly exercising jurisdiction pursuant to § 1292(b), heard the interlocutory appeal.  In 2019, two years after the case was initially filed, a three-judge panel of the 4th Circuit found that DC and Maryland lacked standing and so “reverse[d] the district court’s orders” and “remand[ed] with instructions to dismiss the complaint with prejudice.”

The astute reader will say, now two years and 4 pages into this post, wait, what happened to the merits?  It’s true, in all of these proceedings, no judge has ruled on whether the President actually did what was alleged.  Did he actually violate the Constitution?  Are the profits from foreign governments actually “emoluments” prohibited by the Constitution?  If so, is the Hotel’s business really depriving DC and Maryland of tax revenues and other opportunities?  None of these questions have been decided, and the interesting and novel Constitutional questions remain unresolved. 

Moreover, we’re not done yet.  Disheartened by the panel’s decision, DC and Maryland still had options.  Specifically, they had two; appeal to the full Fourth Circuit Court of Appeals (known as “appealing en banc”), or appeal to the United States Supreme Court (known as a petition for a writ of certiorari or “seeking cert”).  DC and Maryland chose to appeal en banc, and the full Fourth Circuit agreed to hear the case earlier this year.

Last week, the full Fourth Circuit issued its opinion.  Somewhat surprisingly, the full (“en banc”) Court of Appeals, by vote of 9-6, reversed the panel’s decision and denied the writ of mandamus.  According to the en banc court, a party seeking mandamus relief must demonstrate that: (1) there are no other adequate means of obtaining the relief sought; (2) the right to issuance of the writ is clear and indisputable; and (3) the writ is appropriate under the circumstances.  Essentially, the en banc majority found that, in this case, none of the three requirements were satisfied.  As to the first, the majority found that there were other adequate means of obtaining relief; namely, the ordinary appellate process.  Writs of mandamus, according to the court, are not to be used as substitutes for the ordinary appeals process.  As for the second prong, issuance of a writ of mandamus is always discretionary with the appellate court and, thus, no clear and indisputable right to a writ exists.  Finally, as to the third prong, while cases involving the President potentially present more appropriate circumstances, particularly when the suit threatens to impair the ability of the President to execute his constitutional duties, and/or infringe on the Executive Branch’s ability to faithfully execute the laws, none of those concerns are present here.  Thus, the majority concluded that the writ was not appropriate under the circumstances. 

As you will note, the en banc court limited its decision to simply the question of whether the panel was correct in granting the writ of mandamus initially.  It did not take on any of the more interesting underlying questions about emoluments or constitutional violations.  Rather, in denying the writ, it effectively sends the case all the way back to the original district court, where, absent an appeal to the Supreme Court, discovery will once again commence.  So, now more than three years since the case was initially commenced, perhaps it will finally move to the next stage of the proceedings. 

This case is, in my opinion, an excellent example both of why constitutional law develops so slowly and why the few cases that do reach the Supreme Court each term acquires such outsized importance to our national jurisprudence.  Litigation, especially litigation involving constitutional rights and duties, frequently gets diverted by these seemingly mundane and esoteric procedural issues that have little to do with the substance underlying the actual dispute.  So, please read beneath the headlines, focus on the details not the summaries provided by the press.  Some of these cases are of the once-in-a-generation variety, and they are all part of the vast array of civic life that all people should, in my opinion, pay far more attention to and focus on.  Legal cases don’t decide elections, but they do “make law” in the sense that they set the precedent that will govern future disputes and may inform the decisions of our elected officials.

If there was a point to this post, it was to shed some light on the grueling process involved by high-profile, high-stakes constitutional cases.  Don’t get me wrong, cases like this are incredibly fascinating to work on and, win or lose, are extremely important.  Often, when I look back on some of the matters I’ve been involved in, I know that I played a small role in the making of constitutional law.  Some of these cases may even be read and reviewed by future law students (hopefully, positively), which provides a significant amount of personal and professional pride.  All that said, they can also be exasperating and frustrating, as they take a tremendous amount of time and effort and sometimes, they do not result in anything tangible.  Such is the path I’ve chosen.   I don’t honestly know who has the better of the legal arguments in the emoluments case that I’ve described.  The point wasn’t to discuss my opinion of the outcome, but to explain the process and hopefully give everyone a look behind the curtain at how at least one lawyer looks at these complex issues.  

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s