IN RE TRUMP

No. 18-2486.

958 F.3d 274 (2020)

IN RE: Donald J. TRUMP, President of the United States of America, in his official capacity and in his individual capacity, Petitioner. Professor Clark D. Cunningham; Professor Jesse Egbert, Amici Curiae, Scholar Seth Barrett Tillman; Judicial Education Project, Amici Supporting Petitioner, Former National Security Officials; Commonwealth of Virginia; the Niskanen Center; Republican Women for Progress; Cheri Jacobus; Tom Coleman; Emil H. Frankel; Joel Searby; Administrative Law, Constitutional Law, and Federal Courts Scholars; Certain Legal Historians, Amici Supporting Respondents.

United States Court of Appeals, Fourth Circuit.

Decided: May 14, 2020.


Attorney(s) appearing for the Case

ARGUED: Hashim M. Mooppan , UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Petitioner. Loren Linn AliKhan , OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, D.C., for Respondents. ON BRIEF: Joseph H. Hunt , Assistant Attorney General, Mark R. Freeman , Michael S. Raab , Martin Totaro , Joshua Revesz , Megan Barbero , Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Petitioner. Brian E. Frosh , Attorney General, Steven M. Sullivan , Solicitor General , Leah J. Tulin , Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland; Karl A. Racine , Attorney General, Stephanie E. Litos , Assistant Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, D.C.; Norman Eisen , Noah Bookbinder , Laura C. Beckerman , Stuart C. McPhail , CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Washington, D.C.; Deepak Gupta , Joshua Matz , Daniel Townsend , GUPTA WESSLER PLLC, Washington, D.C.; Joseph M. Sellers , Christine E. Webber , COHEN MILSTEIN SELLERS & TOLL PLLC, Washington, D.C., for Respondents. Craig Thomas Merritt , CHRISTIAN & BARTON, L.L.P., Richmond, Virginia, for Amici Professor Clark D. Cunningham and Professor Jesse Egbert. Carrie Severino , JUDICIAL EDUCATION PROJECT, Washington, D.C., for Amicus Judicial Education Project. Robert W. Ray , THOMPSON & KNIGHT LLP, New York, New York; Josh Blackman , Houston, Texas, for Amicus Seth Barrett Tillman. Jan I. Berlage , GOHN HANKEY & BERLAGE LLP, Baltimore, Maryland, for Amici Judicial Education Project and Seth Barrett Tillman. Harold Hongju Koh , Rule of Law School, YALE LAW SCHOOL, New Haven, Connecticut; Phillip Spector , MESSING & SPECTOR LLP, Baltimore, Maryland, for Amici Former National Security Officials. Mark R. Herring , Attorney General, Toby J. Heytens , Solicitor General, Matthew R. McGuire , Principal Deputy Solicitor General, Michelle S. Kallen , Deputy Solicitor General, Brittany M. Jones , OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Amicus Commonwealth of Virginia. Colin E. Wrabley , Devin M. Misour , Brian T. Phelps , Pittsburgh, Pennsylvania, M. Patrick Yingling , REED SMITH LLP, Chicago, Illinois, for Amici The Niskanen Center, Republican Women for Progress, Cheri Jacobus, Tom Coleman, Emil H. Frankel, and Joel Searby. Regina Kline , Jean M. Zachariasiewicz , Anthony J. May , BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Amici Administrative Law, Constitutional Law, and Federal Courts Scholars. H. Laddie Montague, Jr. , Eric J. Cramer , Candace J. Enders , BERGER & MONTAGUE, P.C., Philadelphia, Pennsylvania; Erica C. Lai , Melissa H. Maxman , COHEN & GRESSER LLP, Washington, D.C., for Amici Certain Legal Historians.

Petition for writ of mandamus denied by published opinion. Judge Motz wrote the majority opinion, in which Chief Judge Gregory and Judges King, Keenan, Wynn, Diaz, Floyd, Thacker, and Harris joined. Judge Wynn wrote a concurring opinion, in which Judges Keenan, Floyd, and Thacker joined. Judge Wilkinson wrote a dissenting opinion, in which Judges Niemeyer, Agee, Richardson, Quattlebaum, and Rushing joined. Judge Niemeyer wrote a dissenting opinion, in which Judges Wilkinson, Agee, Quattlebaum, and Rushing joined.


ON REHEARING EN BANC

President Donald J. Trump, in his official capacity, petitions this court for a writ of mandamus directing the district court to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) or, in the alternative, ordering the district court to dismiss...

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