Fourth Circuit's En Banc Bench Brawls Over Trump Claims
"The majority has only confirmed one of the Founders' worst fears: that, while no man may be above the law, a group of judges, so emboldened, may consider themselves beyond it," one dissenting judge wrote.
May 14, 2020 at 03:07 PM
7 minute read
The original version of this story was published on National Law Journal
Federal appeals judges offered biting characterizations of each other's claims in a high-profile case over President Donald Trump's D.C. hotel Thursday, issuing opinions that accused their opposing colleagues of undermining the judicial system and attempting to craft a bleak precedent for future legal challenges to the presidency.
The en banc U.S. Court of Appeals for the Fourth Circuit ruled 9-6 to let a lawsuit from D.C. and Maryland officials alleging Trump is violating the Constitution's emoluments clause move forward, rejecting the president's request for the court to review a district judge's denial of a motion to dismiss the case or to throw out the lawsuit entirely.
Judges frequently chide each other's findings in issuing opinions. But the language used in Thursday's opinions is a departure from the typical collegiality seen in judges's criticisms of their fellow jurists.
One dissenting opinion written by Judge J. Harvie Wilkinson, and joined by Judges Paul Niemeyer, Steven Agee, Julius Richardson, A. Marvin Quattlebaum and Allison Rushing, states "the federal judiciary, no less than the president, is subject to the law. And here the federal judiciary has sorely overstepped its proper bounds."
"The majority is using a wholly novel and nakedly political cause of action to pave the path for a litigative assault upon this and future presidents and for an ascendant judicial supervisory role over presidential action," Wilkinson wrote.
The 35-page dissent is highly skeptical of whether the case is even justiciable, as courts have never issued an injunction against a sitting president as the local attorneys general sought. And it said the majority opinion invites "the judiciary to assemble along partisan lines in suits that seek to enlist judges as partisan warriors in contradiction to the rule of law that is and should be our first devotion."
The dissenting opinion further argues the lawsuit "does not merely threaten the separation of powers. It violates them in a way …. that no federal court of appeals has ever done before."
"Make no mistake about what has really happened here. By discarding centuries of settled practice and precedent that kept true to the genius of the Constitution and its separation of powers, the majority has only confirmed one of the Founders' worst fears: that, while no man may be above the law, a group of judges, so emboldened, may consider themselves beyond it," Wilkinson wrote.
"The only people I can think of who will fare better under this whole obscure regime are the lawyers who will dutifully assist those persons from the private sector who still dare to enter the public one," he added.
In a separate dissent written by Niemeyer and joined by most of the judges who backed Wilkinson's dissent, with the exception of Richardson, Niemeyer takes issue with the district court's handling of the case. He claims the lower court "through a series of fragmented rulings, has sought to avoid appellate scrutiny of its orders denying the president's motions to dismiss."
"And given the procedural history in this case, I can only conclude that the district court has purposefully endeavored to ensure that the president will continue to be subjected to this unprecedented litigation," the opinion reads. "The majority now protects this course, ruling that the president must, while in office, defend himself from this most marginal of lawsuits."
Niemeyer wrote he would rule to dismiss the lawsuit, saying "the dire and far-reaching consequences of permitting a court to create and define a new right under a structural clause of the Constitution, as well articulated by Judge Wilkinson in his separate dissenting opinion, threaten to undermine the very structural foundation of the Constitution."
And he further urged the case be taken up to the U.S. Supreme Court. "In endeavoring to prevent an appealable order from materializing in this case, the district court inappropriately aggrandized its own jurisdiction and thereby abused judicial power," Niemeyer wrote. "This alone was sufficient to afford the president the 'clear and indisputable' right to the requested mandamus relief, particularly as the Supreme Court has 'not limited the use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of "jurisdiction."'"
The majority opinion, written by Judge Diana Motz, criticized both Wilkinson and Niemeyer's dissents. Of Niemeyer's arguments on the district court's rulings, Motz wrote: "Mere disagreement with the district court, the body that Congress vested with the initial discretion to make that determination, does not constitute evidence that the decision was based on 'whim' or that the district court usurped judicial power."
Chief Judge Roger Gregory joined the opinion, as did Judges James Wynn, Barbara Keenan, Henry Floyd, Stephanie Thacker, Albert Diaz, Pamela Harris and Robert King.
The majority opinion further rejects Wilkinson's claims of partisanship infiltrating their opinion. "We remain confident that our narrow holding, reached with careful attention to the standard of review, is the essence of restraint," Motz wrote. "Readers may compare our measured approach with the dramatics of the dissent and draw their own conclusions."
"Allowing the president to be the final arbiter of both the interpretation and enforcement of the law—as the dissents would—would gravely offend separation of powers," the opinion reads. "Rather than sanction an 'assault by the judicial branch against the powers of the executive,' our holding affirms the separation of powers principles dictated by the Constitution and endorsed by centuries of foundational jurisprudence."
A concurring opinion, apparently written to counter the dissents' claims, is harsher in criticizing the opposing judges. The opinion written by Wynn, and joined by Keenan, Floyd and Thacker, says the majority opinion does not undermine the judiciary—but the dissents' criticism of it does.
"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 opinion reads.
"And yet our dissenting colleague also grieves the 'loss of that distinct and noble character of non-partisanship and self-restraint, which our forebears on the bench worked mightily to build and which our judicial generation has no right to disassemble,'" Wynn continued. "If this case represents that loss, it is because the dissenting opinions, in a disappointing display of judicial immodesty, have made this case into something it is not."
"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," the judge added.
Read more:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllTravis Lenkner Returns to Burford Capital With an Eye on Future Growth Opportunities
Legal Speak's 'Sidebar With Saul' Part V: Strange Days of Trump Trial Culminate in Historic Verdict
1 minute readLegal Speak's 'Sidebar with Saul' Part IV: Deliberations Begin in First Trump Criminal Trial
1 minute readJosh Partington of Snell & Wilmer Is in Fact a Rock Star in the Office (and Out of It)
1 minute readTrending Stories
- 1The Law Firm Disrupted: Playing the Talent Game to Win
- 2Preparing Your Law Firm for 2025: Smart Ways to Embrace AI & Other Technologies
- 3GlaxoSmithKline Settles Most Zantac Lawsuits for $2.2B
- 4BD Settles Thousands of Bard Hernia Mesh Lawsuits
- 5Monsanto Moves to Pause PCB Trial That Starts This Week
Who Got The Work
Blank Rome partner Andrew T. Hambelton has stepped in to defend Fragrancenet.com in a pending trademark infringement lawsuit. The case, filed Aug. 29 in New York Southern District Court by the Blakely Law Group, targets the defendants for allegedly selling counterfeit fragrance products. The case, assigned to U.S. District Judge Lorna G. Schofield, is 1:24-cv-06521, Abercrombie & Fitch Trading Co. v. Quester (US) Enterprises, Inc. et al.
Who Got The Work
Davis Polk & Wardwell partners Mari Grace and Edmund Polubinski III have entered appearances for Australia-based Bitcoin-mining company Iris Energy and other defendants in a pending securities class action. The action, filed Oct. 7 in New York Eastern District Court by the Rosen Law Firm, contends that the defendants concealed the inadequacy of the company's site in Childress County, Texas, including it being 'ill-equipped' and unable to operate the company's proprietary design. The case, assigned to U.S. District Judge Peggy Kuo, is 1:24-cv-07046, Williams-Israel v. Iris Energy Limited et al.
Who Got The Work
Ryan S. Stippich of Reinhart Boerner Van Deuren has entered an appearance for biopharmaceutical company Veru Inc. and other defendants in a pending shareholder derivative lawsuit. The action, filed Sept. 30 in Wisconsin Western District Court by the Brown Law Firm on behalf of June Ovadias, accuses the defendant of failing to disclose that small sample sizes and other issues rendered it unlikely that the FDA would grant Emergency Use Authorization for the cancer drug candidate sabizabulin as a potential treatment for COVID-19. The case, assigned to U.S. District Judge William M. Conley, is 3:24-cv-00676, Ovadias, June v. Steiner, Mitchell et al.
Who Got The Work
Holland & Knight partners Cynthia A. Gierhart and Thomas Willcox Brooke have entered appearances for Pakistani American Political Action Committee and Rao Kamran Ali in a pending trademark infringement lawsuit. The action, filed Sept. 24 in District of Columbia District Court by Jackson Walker on behalf of Pakistani American Public Affairs Committee, accuses the defendants of using a mark that's confusingly similar to the plaintiff's 'Pak-Pac' marks without authorization. The case, assigned to U.S. District Judge Randolph D. Moss, is 1:24-cv-02727, Pakistani American Public Affairs Committee v. Pakistani American Political Action Committee et al.
Who Got The Work
Lauren M. Rosenberg and Yonatan Even of Cravath, Swaine & Moore have stepped in to represent Israel-based Oddity Tech Ltd. in a pending securities class action. The case, filed Aug. 30 in New York Southern District Court by Pomerantz LLP and Holzer & Holzer, contends that the defendant made materially misleading statements regarding the capability of Oddity's AI technology and ongoing civil litigation, resulting in the artifical inflation of the market price of Oddity's securities. The case, assigned to U.S. District Judge Margaret M. Garnett, is 1:24-cv-06571, Hoare v. Oddity Tech Ltd. et al.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250