Wake Forest Law Review
2Mar

Will Trump be in jail on election day? Examining the former President’s criminal indictments

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Jasmine Jaffe

Former President Donald Trump faces a total of 91 felony charges across four separate criminal indictments.[1] Pleading not guilty to all charges against him, all four jurisdictions are gearing up for trial, and the timeline of these legal proceedings carries significant implications for the 2024 Presidential Election.[2] As the very likely Republican nominee, Trump is set to face off against his 2020 opponent, President Joe Biden.[3] If Trump is convicted and sentencing occurs before November 5, there stands a real possibility of the presidential candidate being in a prison cell when Americans cast their votes.

New York Hush Money Indictment

On March 30, 2023, Manhattan District Attorney Alvin Bragg announced that a grand jury had indicted former President Trump on 34 felony charges of falsifying business records concerning hush money payments made to Stormy Daniels.[4] Prosecutors allege that Trump “orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects.”[5] The defense filed multiple motions to dismiss the charges to no avail and as of February 15, Trump’s first criminal trial is set to begin March 25.[6] According to presiding Judge Merchan, the trial is expected to last five or six weeks, ending in late April or early May.[7] If convicted, which is likely considering the New York jury pool and the strength of the evidence, each count could result in a prison sentence of up to four years, to be served consecutively, or the judge could impose no prison sentence.[8] The latter is seen as the most likely result because the accusations against Trump are largely victimless.[9] Consequently, the judge is not likely to sentence him to anything more than fines, or at most, probation and community service.[10]

Florida Classified Documents Indictment

Trump faces his most serious charges in a 40-felony count indictment related to his alleged mishandling of classified documents at Mar-a-Lago.[11] While the trial is technically set for May, Trump filed a motion to dismiss on February 22, claiming he should be shielded from prosecution by presidential immunity.[12] This motion aligns with previous requests to toss out the indictment, citing alleged prosecutorial misconduct and selective and vindictive prosecution.[13] By flooding the court with these motions and the amount of discovery required, it is highly unlikely that trial will occur before the election.[14] If elected and able to pardon himself, Trump may avoid his most damning indictment, which typically carries “prison sentences of several years or more.”[15]

January 6th Election Interference Indictment

Trump’s third indictment stems from special counsel Jack Smith’s investigation into alleged efforts by the former president to overturn the 2020 election. The indictment alleges Trump “attempted to exploit the violence and chaos at the Capitol by calling lawmakers to convince them . . . to delay the certification.”[16] In October, the Trump defense team filed a motion to dismiss citing presidential immunity under Nixon v. Fitzgerald.[17] After the district court rejected this argument in December, special counsel Jack Smith sought the extraordinary step of bypassing the D.C. Circuit’s appeal process by turning directly to the Supreme Court. Smith argued that the “Court should grant a writ of certiorari before judgment to ensure that it can provide the expeditious resolution this case warrants.”[18] The Court was unconvinced and denied the special counsel’s request, sending the case back to the D.C. Circuit.[19] On February 6, the appeals court unanimously affirmed the District Court, with Trump shortly after requesting the Supreme Court to block the appeals court ruling.[20] Twenty-two days later, the Court granted cert and oral argument has been set for April 22.[21] Given the Court’s expected timeline, a decision will likely not be issued until late June.[22] Assuming the former President does not receive immunity, this would push the trial right up to the election.[23] However, most legal commentators believe this is “game over” for Jack Smith, and the trial will not conclude until after November 5.[24]

Georgia Election Racketeering Indictment

The most recent of Trump’s criminal charges occurred on August 14, 2023, when a grand jury in Fulton County, Georgia indicted the former President for violation of state RICO charges, among 12 other charges.[25] Like other prosecutors, Fulton County District Attorney Fani Willis is seeking to secure a conviction before the election.[26] However, she faces her own uphill battle as she is fighting efforts against her disqualification from the case for alleged corruption.[27] Trump co-defendant Michael Roman and several other co-defendants are seeking Willis’ disqualification from the election case on the grounds that she benefited financially from a romantic relationship with an attorney who she hired for the case.[28] Legal observers are split on if presiding Judge Scott McAfee will decide to remove Willis from the case.[29] If she is removed, it would take some time for a new prosecutor to be appointed, and an even longer time for the complex, 15-defendant case to see trial.[30] This delay would likely mean that President Trump, yet again, escapes prosecution until after the election.

In summary, the likelihood of the former President finding himself behind bars before November 5, 2024, appears remote. Even in the event of a conviction in any of the pending criminal cases, legal processes, appeals, and potential delays are likely to extend well beyond the election. The protracted nature of the legal system, combined with the complexity of the charges and the strategic legal maneuvers employed by Trump’s defense team, make the prospect of prompt resolutions improbable.

[1] Gareth Evans, A guide to Donald Trump’s four criminal cases, BBC (Feb. 15, 2024), https://www.bbc.com/news/world-us-canada-61084161.

[2] Id.

[3] Ken Bredemeier, Trump Moving Closer to Election Rematch With Biden, Voice of America (Feb. 25, 2024), https://www.voanews.com/a/trump-moving-closer-to-election-rematch-with-biden/7501994.html.

[4] Indictment, People v. Trump, Case No. 1:23-cv-71543 (S.D.N.Y. Mar. 30, 2023).

[5] Statement of Facts, People v. Trump, Case No. 1:23-cv-71543 (S.D.N.Y. Mar. 30, 2023).

[6] Frank G. Runyeon, Trump Gets March 25 Trial Date in NY Hush Money Case, Law360 (Feb. 15, 2024), https://www.law360.com/articles/1803271/trump-gets-march-25-trial-date-in-ny-hush-money-case.

[7] Id.

[8]Ann E. Marimow, Here are the 34 charges against Trump and what they mean, Wash. Post (Apr. 4, 2023), https://www.washingtonpost.com/national-security/2023/04/04/trump-charges-34-counts-felony/#.

[9] John Bowden, Will Donald Trump go to prison?, The Independent (Feb. 15, 2024), https://www.the-independent.com/news/world/americas/us-politics/trump-prison-jail-time-trial-b2497046.html.

[10] Id.

[11] Indictment, U.S. v. Trump, Case No. 23-cr-80101 (S.D. Fla. Jul. 27, 2023).

[12] Perry Stein & Dalvin Barrett, Trump again claims immunity in effort to toss Fla. Classified documents case, Wash. Post (Feb. 23, 2024), https://www.washingtonpost.com/national-security/2024/02/22/trump-classified-documents-motions-dismiss/#.

[13] Id.

[14] Alan Feuer & Maggie Haberman, A Trump Judge Under Scrutiny, N.Y. Times (Feb. 22, 2024), https://www.nytimes.com/2024/02/22/us/politics/trump-trial-documents-cannon.html. Some have called for Judge Aileen Cannon’s removal from the case, characterizing her one of the “far worse of the jurists overseeing these momentous cases” and alleging that her “decisions during the investigative phase of the case strayed widely from precedent.” Norman L. Eisen & Joshua Kolb, Aileen Cannon Might Actually Get Herself Kicked Off the Trump Classified Docs Case, Slate (Feb. 20, 2024), https://slate.com/news-and-politics/2024/02/aileen-cannon-trump-classified-disqualification.html.

[15] John Bowden, Will Donald Trump go to prison?, The Independent (Feb. 15, 2024), https://www.the-independent.com/news/world/americas/us-politics/trump-prison-jail-time-trial-b2497046.html.

[16] Indictment, U.S. v. Trump, Case No. 23-cr-00257 (D.D.C. Aug. 1, 2023), at 41.

[17] Motion to Dismiss Indictment Based on Presidential Immunity, U.S. v. Trump, Case No. 23-cr-00257 (D.D.C. Oct. 5, 2023). Nixon held that the President is entitled to absolute immunity from liability for official responsibilities. Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982).

[18] Petition for Writ of Certiorari, US v. Trump, (No. 23-00357), at 3.

[19] Robert Barnes, Supreme Court won’t expedite ruling on Trump’s immunity claim, Wash. Post (Dec. 22, 2023), https://www.washingtonpost.com/national-security/2023/12/22/supreme-court-trump-immunity-expedition-denied/#.

[20] US v. Trump, Case No. 23-cr-00257-1 (D.C. Cir. Feb. 6, 2024).

[21] Trump v. US, cert. granted, No. 23-939 (Feb. 28, 2024).

[22] Adam Liptak, Supreme Court Agrees to Hear Trump’s Immunity Claim, Setting Arguments for April, N.Y. Times (Feb. 28, 2024), https://www.nytimes.com/2024/02/28/us/supreme-court-trump-immunity-trial.html.

[23] Zach Schonfeld, Trump’s Jan. 6 trial falls into doubt as Supreme Court takes up immunity claims, Hill (Feb. 29, 2024), https://thehill.com/regulation/court-battles/4497023-trump-jan-6-trial-supreme-court-immunity-claims//.

[24] Rick Hasen, Why Did the Supreme Court Wait So Long to Decide to Set the Trump Criminal Immunity Case for Full Hearing and Argument? It Likely Means No Trial for Trump on Election Subversion Before the Election, Election Law Blog (Feb. 28, 2024), https://electionlawblog.org/?p=141686; Kyle Cheney & Josh Gerstein, How the Supreme Court just threw Trump’s 2024 trial schedule into turmoil, Politico (Feb. 28, 2024), https://www.politico.com/news/2024/02/28/how-the-supreme-court-just-threw-trumps-2024-trial-schedule-into-turmoil-00144043 (The trial judge has indicated that she would give Trump about three months to prepare for a new trial date, meaning that the trial would likely not begin until, at the earliest, October. The trial itself is expected to last another three months and thus ending in December).

[25] Indictment, Trump v. State, Case No. 23-sc-188947 (Fulton Super. Ct. Aug. 14, 2023)

[26] Jan Wolfe & Cameron McWhirter, Georgia Prosecutors Seek August 2024 Trial Date for Trump, Wall St. J. (Nov. 17, 2023), https://www.wsj.com/politics/elections/georgia-prosecutors-seek-august-2024-trial-date-for-trump-bb9ae97c#.

[27] David Wicket & Bill Rankin, Meet Mike Roman, the man trying to bring down Fani Willis, Atlanta J. Const. (Feb. 7, 2024), https://www.ajc.com/politics/meet-mike-roman-the-man-trying-to-bring-down-fani-willis/YMCZT7UVHBDRNAMYRPGJUATMJU/.

[28] Id.

[29] See Katie S. Phang, Why Judge McAfee’s Fani Willis decision is a surprisingly easy one, MSNBC (Feb. 21, 2024), https://www.msnbc.com/opinion/msnbc-opinion/fani-willis-hearing-decision-judge-mcafee-georgia-case-rcna139750#. See cf. Thomas Kika, Fani Willis’ Decision is ‘Bad Look,’ Ex-Prosecutor Warns, Newsweek (Feb. 5, 2024), https://www.newsweek.com/fani-willis-joyce-vance-fulton-county-1867069.

[30] Alison Durkee, Will Fani Willis Be Disqualified? Here’s What Would Happen Next if She’s Removed., Forbes (Feb. 16, 2024), https://www.forbes.com/sites/alisondurkee/2024/02/16/will-fani-willis-be-disqualified-heres-what-would-happen-next-if-shes-removed/?sh=64b691a017be.

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16Mar

Bird Safeguards Take Flight Again: Biden’s Quick Recall of the Trump-Era Bird Protection Rollbacks

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By: Jaclyn Bragano

In an area of law that had been unchanged for nearly fifty years, a 2017 federal memorandum[1] rocked the migratory bird boat, prompting years of contradictory opinions and controversial rulemaking.  The last few years have brought inconsistency and confusion in the context of migratory bird protections as opposing administrations batted back and forth over the interpretation of the Migratory Bird Treaty Act[2] (“MBTA” or “the Act”).

The MBTA was first enacted in 1918 to implement the 1916 international conservation treaty between the United States and Canada to “sav[e] from indiscriminate slaughter and [ensure] the preservation of [] migratory birds.”[3]  Since enactment, it has been amended multiple times, most notably when the United States signed similar treaties with Mexico in 1936, Japan in 1972, and Russia in 1976.[4]  Throughout the amendments, the MBTA remained consistent in its prohibition on “taking” protected migratory bird species “by any means . . . or in any manner” without prior authorization by the Department of the Interior (“DOI”) U.S. Fish and Wildlife Service (“FWS”).[5]  This prohibition was consistently interpreted to strictly penalize both the intentional and incidental “taking” of migratory birds as a federal crime, which includes actions such as killing, capturing, selling, trading, and transporting the protected birds.[6]

Notably, the incidental take prohibition was key in holding BP responsible for the extraordinary damage caused by its 2010 Deepwater Horizon oil spill, which is believed to have killed around one million birds in the Gulf Coast.[7]  BP was fined $100 million under the incidental take interpretation of the MBTA.[8]  Over $64 million went directly to help the birds impacted by the spill and to restore over 350 thousand acres for the birds.[9]  Unfortunately, in 2017, the MBTA lost half its effect when the Trump Administration determined that the Act did not actually protect migratory birds from incidental killings, only intentional killings.[10]  Under this interpretation, BP would not have been held liable under the MBTA for its unintentional destruction, and that $64 million would have never gone to the birds.

Before the DOI changed its interpretation of the MBTA in December 2017, it had consistently applied the migratory bird protections since the 1970s.[11]  At first, the Act was crucial to combat the over-hunting and poaching that decimated the bird populations in the early 1900s.[12]  Now, because “industrial activities [have] emerged as the most significant threat to bird populations,”[13] the MBTA is crucial to prevent “gross negligence by companies that simply do not recognize the value of birds to society or the practical means to minimize harm.”[14]  It is estimated that, per year, power poles electrocute between 900 thousand and 11.6 million birds, collisions with wind turbines kill 234 thousand birds, and oil pits kill 750 thousand birds.[15]  The incidental take prohibition pushes companies to more carefully consider where they place their structures and more prudently contemplate what the environmental impacts of their actions will be in this context.  Without this prohibition, as long as companies don’t intend to kill the birds, under the MBTA, they would face no barriers or consequences to building hard-to-see power lines in known migratory flight paths, for example.  According to Endangered Species Director, Noah Greenwald, at the Center for Biological Diversity, if there is no incidental take prohibition, then “[v]ast numbers of birds will be electrocuted by power lines, drowned in oil waste pits and killed in other easily preventable ways.”[16]

Recognizing the importance of the incidental take interpretation of the MBTA, the Obama Administration DOI formally announced its intent to regulate incidental takes in a 2015 Federal Register notice, hoping to clarify the oft-questioned provision.[17]  More so, in January 2017, just before the transition of powers, the DOI’s then-solicitor, Hilary Tompkins, issued a memorandum that confirmed the DOI’s “long-standing interpretation that the MBTA prohibits incidental takes.”[18]  However, within that year, the new Trump Administration DOI Principal Deputy Solicitor, Daniel Jorjani, pulled a 180 on decades of precedent and issued a new memorandum stating that the MBTA did not prohibit incidental takes, only intentional ones, thus replacing the Tompkins opinion.[19] 

Several environmental groups, as well as multiple states, filed suit to vacate this action.[20]  In August 2020, U.S. District Judge Valerie Caproni decided that Jorjani’s opinion was an “unpersuasive interpretation of the MBTA’s unambiguous prohibition on killing protected birds” and was contrary to law.[21]  Thus, Judge Caproni vacated the Jorjani opinion.[22]

Still, the fight over this interpretation did not end.  The Trump Administration immediately appealed Judge Caproni’s decision to the Second Circuit.  Even further, despite the federal judge holding Jorjani’s 2017 opinion as contrary to law, the Administration made a last-minute push in its final months to promulgate its interpretation through formal rulemaking.[23]  The DOI published its environmental impact statement (“EIS”) in November 2020 and finalized the rule on January 5, 2021, with the intended effective date of February 8, 2021.[24]  In its EIS, the DOI recognized that the policy change would likely result “in increased bird mortality,” but that it would likely reduce “legal and financing costs with improved legal certainty of regulation.”[25]

However, once in office, the Biden Administration quickly took action to counteract these movements.  On February 25, 2021, the Administration withdrew the appeal to the Second Circuit, moving to leave the August decision by Judge Caproni in place, and no longer fighting for reinstatement of the Jorjani opinion.[26]  Additionally, the Biden Administration pushed back the effective date of the Trump Administration’s final rule from February 8, 2021 to March 8, 2021, inviting public comment in the interim.[27]

Nevertheless, on March 8, the Trump-era rule became effective.  Importantly, the Biden Administration DOI was quick to release a statement that same day, formally rescinding the 2017 Jorjani opinion.  In accordance with that erasure, the DOI subsequently announced its intent to propose a new rule that would soon replace the just-enacted Trump Administration rule.[28]  Thus, the Trump-era rule’s days are numbered right out of the gate, and the migratory birds will hopefully benefit from their fair share of protections again soon.

While it is clear that the Biden Administration is supportive of more expansive protection for the migratory birds than the Trump Administration, it is not yet clear what those protections will be.  The DOI stated that it would “reconsider its interpretation of the MBTA to develop common sense standards that can protect migratory birds and provide certainty to industry.”[29]  Because the formal rulemaking process can be long, it is imperative that the Biden Administration gets the ball rolling on reversing the rollback of protections.  Indeed, as Judge Caproni stated in reference to To Kill a Mockingbird, “[i]t is not only a sin to kill a mockingbird, it is also a crime.”[30]

[1] Memorandum from Daniel Jorjani, Principal Deputy Solicitor, to Acting Secretary et. al, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take (Dec. 22, 2017), https://www.doi.gov/sites/doi.gov/files/uploads/m-37050.pdf.

[2] 16 U.S.C. § 703–12.

[3] Convention Between the United States and Great Britain for the Protection of Migratory Birds in the United States and Canada, Gr. Brit.-U.S., Aug. 16, 1916, T.S. No. 628., https://www.fws.gov/migratorybirds/pdf/Treaties-Legislation/Treaty-Canada.pdf; Migratory Bird Treaty Act, U.S. Fish & Wildlife Serv. (Apr. 16, 2020),

https://www.fws.gov/birds/policies-and-regulations/laws-legislations/migratory-bird-treaty-act.php.

[4] Migratory Bird Treaty Act, supra note 3.

[5] Migratory Bird Treaty Act of 1918, Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service, U.S. Fish & Wildlife Serv. (Aug. 8, 2017), https://www.fws.gov/laws/lawsdigest/migtrea.html.

[6] 16 U.S.C. § 704.  A taking is intentional when it is a direct take, such as hunting or poaching, whereas incidental takes have been defined in other contexts by FWS as takes that are “incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.”  16 U.S.C. § 1539(a).

[7] Andy McGlashen, Biden Administration Says it Will Revoke Trump Rule that Let Companies Kill Birds, Nat’l Audubon Soc’y (Mar. 8, 2021), https://www.audubon.org/news/biden-administration-says-it-will-revoke-trump-rule-let-companies-kill-birds.

[8] Id.

[9] The Migratory Bird Treaty Act, Explained, Nat’l Audubon Soc’y (Jan. 26, 2018), https://www.audubon.org/news/the-migratory-bird-treaty-act-explained.

[10] Jorjani, supra note 1.

[11] “From the early 1970s until 2017, Interior interpreted the MBTA to prohibit incidental takes and kills, imposing liability for activities and hazards that led to the deaths of protected birds, irrespective of whether the activities targeted birds or were intended to take or kill birds.”  NRDC v. U.S. Dep’t of Interior, 478 F. Supp. 3d 469, 473 (S.D.N.Y. 2020).

[12] Kristina Rozan, Brief Summary of the Migratory Bird Treaty Act, Animal Legal & Hist. Ctr. (2014), https://www.animallaw.info/intro/migratory-bird-treaty-act-mbta.

[13] NRDC, 478 F. Supp. 3d at 473.

[14] Letter from Lynn Scarlett, Deputy Sec’y of the Interior et al., to The Honorable Ryan Zinke, Sec’y of the Interior (Jan. 10, 2018), https://wildlife.org/wp-content/uploads/2018/01/MBTA-letter.pdf.

[15] Pamela King & Michael Doyle, Judge Restores Migratory Bird Protections, E&E News (Aug. 12, 2020), https://www.eenews.net/stories/1063711523/.

[16] Keith Goldberg, Trump Admin. Sews Up Policy Shift on Migratory Bird Killing, Law360 (Jan. 5, 2021), https://www.law360.com/articles/1341810/trump-admin-sews-up-policy-shift-on-migratory-bird-killing.

[17] Migratory Bird Permits; Programmatic Environmental Impact Statement, 80 Fed. Reg. 30,032 (May 26, 2015).

[18] Memorandum from Hilary Tompkins, Principal Deputy Solicitor to Acting Secretary, Incidental Take Prohibited Under the Migratory Bird Treaty Act (Jan. 10, 2017).

[19] NRDC v. U.S. Dep’t of Interior, 478 F. Supp. 3d 469, 478 (S.D.N.Y. 2020) (“The Opinion is a recent and sudden departure from long-held agency positions backed by over forty years of consistent enforcement practices.”).

[20] Id. at 471.

[21] Id. at 480–81.

[22] Id. at 489.

[23] Michael Phillis, Trump Admin. Advances Policy Shift on Migratory Bird Killing, Law360 (Nov. 30, 2020), https://www.law360.com/articles/1332921.

[24] Goldberg, supra note 16.

[25] Id.

[26] Michael Phillis, Feds Drop 2nd Circ. Challenge of Migratory Bird Protections, Law360 (Feb. 26, 2021), https://www.law360.com/energy/articles/1359317/feds-drop-2nd-circ-challenge-of-migratory-bird-protections.

[27] Id.

[28] McGlashen, supra note 7.

[29] Michael Doyle, Interior Grounds Trump-era Migratory Bird Legal Restrictions, E&E News (Mar. 8, 2021), https://www.eenews.net/stories/1063726893.

[30] NRDC v. U.S. Dep’t of Interior, 478 F. Supp. 3d 469, 471 (S.D.N.Y. 2020).

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15Oct

TikTok, Inc. v. Trump: Can TikTok’s U.S. Operations Last?

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Composite image created using an original photograph by Gage Skidmore of President Donald Trump, via flickr.com.

By Christopher R. Taylor

On August 6th, President Trump issued Executive Order 13,942 (“TikTok Prohibition Order”) prohibiting transactions with ByteDance Ltd. (“ByteDance”), TikTok’s parent company, because of the company’s data collection practices regarding U.S. users and its close relationship with the Peoples Republic of China (“PRC”).[1] Eight days later President Trump issued a subsequent order (“Disinvestment Order”) calling for ByteDance to disinvest from Musical.ly, an application that was acquired by ByteDance and later merged with TikTok’s application.[2] TikTok is now engulfed in a legal battle against the Trump administration fighting both of these orders and was recently partially granted a preliminary injunction from the TikTok Prohibition Order.[3] However, the question remains—how successful will TikTok be in stopping the orders and what effect does this have on future cross-border transactions?

The foundation for President Trump’s TikTok orders was laid over a year earlier with Executive Order 13,873.[4] This order declared a national emergency under the International Emergency Economic Power Act (“IEEPA”) because of the “unusual and extraordinary threat” of “foreign adversaries . . . exploiting vulnerabilities in information and communication technology services.”[5] This national emergency was renewed for another year on May 13th, 2020.[6] Shortly after this renewal, the Trump administration issued both TikTok orders.

The TikTok Prohibition Order delegated to the Secretary of the Department of Commerce the task of defining specific prohibited transactions with ByteDance within 45 days of the execution of the order.[7] Following the president’s directive, the Secretary issued five phased prohibitions on transactions with TikTok, all with the stated purpose of limiting TikTok’s spread of U.S. users’ sensitive personal information to the PRC.[8] The Department of Commence implemented these prohibitions based primarily on two threats: (1) TikTok would share U.S. users’ personal data with the PRC to further efforts of espionage on the U.S. government, U.S. corporations, and U.S. persons and (2) TikTok would use censorship on the application to shape U.S. users’ perspective of the PRC.[9]

While the Trump administration was at work attempting to remove or substantially change TikTok’s U.S. presence, TikTok did not stand by idly. Instead, TikTok and ByteDance initiated an action challenging the Trump administration’s authority under the Administrative Procedure Act (“APA”) and the U.S. Constitution.[10] After filing the action in the U.S. District Court for the District of Columbia, TikTok moved for a preliminary injunction.[11] On September 29th, the court partially granted the preliminary injunction.[12]

Among the various arguments presented for the preliminary injunction, TikTok’s strongest argument was that the Trump administration’s actions violated APA § 706(2)(C) by exceeding its statutory authority under the IEEPA.[13] The IEEPA prohibits the President from “directly or indirectly” regulating “personal communication, which does not involve a transfer of anything of value” or the importation or exportation of “information or information materials.”[14] The IEEPA does not define “information materials,” however, it does provide examples, which include photographs, films, artworks, and news wire feeds.[15]

TikTok argued both of these exceptions applied, making the Trump administration’s prohibitions unlawful.[16] First, TikTok argued that the information exchanged by its global users includes art, films, photographs, and news.[17] Therefore, the information exchanged on TikTok fits within the definition of information materials.[18] Second, TikTok argued most of the communications exchanged on the application are among friends, and thus do not involve anything of value.[19]

The government countered by arguing that neither exception applied, contending for a narrower interpretation of the IEEPA exceptions.[20] First, the government argued the information materials exception did not apply because the TikTok prohibitions only regulate “business-to-business economic transactions,” and does not regulate the exchange of “information materials” by TikTok users themselves.[21] In the alternative, the government asserted Congress did not intend to create such a broad exception that would allow foreign adversaries to control data services.[22] Second, the government argued that some communications on TikTok are of value to users and, even if all communications are not of value to all users, they are of value to TikTok itself.[23] The government asserted that the use of the application alone provides value to TikTok making the exchanged communications fall outside of the IEEPA exception.[24]

In partially granting TikTok’s preliminary injunction, the court found both exceptions applied to TikTok.[25] First, the court held the content on TikTok’s application constitutes “information materials.”[26] Although the government only regulates economic transactions, the prohibitions still indirectly regulate the exchange of “information materials.”[27] Thus, the Trump administration’s actions directly fit within the IEEPA exception barring indirect regulation of information materials.[28]

Turning to the second exception on value, the court recognized some information on TikTok was of value.[29] However, it found the majority of the information provided no value to users.[30] Furthermore, the government’s argument regarding the value of communications to TikTok was at odds with Congressional intent.[31] The court found if Congress meant to look at the value provided to the company, as opposed to the value provided to users, the exception would be read out of existence.[32]

After finding that both exceptions applied, the court found irreparable harm to TikTok and equity supported partially granting the preliminary injunction.[33] However, the court refused to grant an injunction blocking the whole TikTok Prohibition Order because only one of the prohibitions was an imminent threat to TikTok.[34] The injunction only blocked the prohibition on TikTok downloads and updates from online application stores and marketplaces, leaving the remaining four prohibitions unaffected.[35]

While it appears TikTok has won the first round of this legal dispute, this fight is likely far from over. In response to the grant of the partial preliminary injunction, the Department of Commerce explained it is prepared to “vigorously defend the . . . [Executive order] and the Secretary’s implementation efforts from legal challenges.”[36] Based on this strong reaction, the dispute seems fertile for further quarrels regarding the merits of both executive orders.

The current TikTok dispute and the Trump administration’s willingness to use the IEEPA will likely also have broader implications for cross-border transactions, especially those involving the Peoples Republic of China or personal data. Since its enactment in 1979, presidential use of the IEEPA has become more frequent and broader in scope.[37] Thus, it is likely presidential use of the IEEPA will continue to grow no matter the President. Furthermore, the Trump administration’s strong stance toward the PRC has exacerbated tensions and led to an uptick in investigations into cross-border deals with Chinese companies.[38] Therefore, in-depth looks at deals with Chinese companies will likely continue to be the norm, at least for the remainder of the Trump presidency. In an effort to avoid disputes similar to TikToks, business dealmakers should obtain clearance from the Committee on Foreign Investment in the United States before the completion of any cross-border transaction, especially those involving the PRC or personal data.[39]

[1] Exec. Order No. 13,942, 85 Fed. Reg. 48,637 (Aug. 6, 2020).

[2] Order on the Acquisition of Musical.ly by ByteDance Ltd, 2020 Daily Comp. Pres. Doc. 608 (Aug. 14, 2020).

[3] TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250, at *11, *26 (D.D.C. Sept. 27, 2020).

[4] Exec. Order No. 13,873, 84 Fed. Reg. 22,689 (May 15, 2019).

[5] Id.

[6] Notice on Continuation of the National Emergency with Respect to Securing the Information and Communications Technology and Services Supply Chain, 2020 Daily Comp. Pres. Doc. 361 (May 13, 2020).

[7] Exec. Order 13,942, at 48,638.

[8] See Identification of Prohibited Transactions to Implement Executive Order 13942 and Address the Threat Posed by TikTok and the National Emergency with Respect to the Information and Communications Technology and Services Supply Chain, 85 Fed. Reg. 60,061 (Sept. 24, 2020) (prohibiting new downloads and updates from the app-store; servers supporting TikTok in the U.S.; content delivery services used by TikTok; internet transit or peering agreements; and the use of TikTok code, services or functions). The Secretary set up a phrased implementation of this order, making the app store ban effective September 20th, 2020, and the remaining four prohibitions effective November 12th, 2020. Id.

[9] Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for a Preliminary Injunction at Ex. 1, TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250 (D.D.C. Sept. 27, 2020).

[10] Complaint at 30–42, TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250 (D.D.C. Sept. 27, 2020). The specific counts in the complaint include allegations of (1) violations of APA § 706(2)(A) and § 706(2)(E), (2) violations of the First Amendment’s Right to Free Speech, (3) violations of the Due Process Clause of Fifth Amendment, (4)  ultra vires action under IEEPA because there is no national emergency, (5) ultra vires action because actions restrict personal communications and information violating IEEPA, (6) violation of Non-Delegation Doctrine of IEEPA, and (7)  violation of Fifth Amendment Taking Clause. Id.

[11] TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250, at *11–12 (D.D.C. Sept. 27, 2020).

[12] Id. at *26.

[13] See id. at *21. 

[14] 50 U.S.C. § 1702(b)(1), (3).

[15] Id. § 1702(b)(3).

[16] TikTok, 2020 U.S. Dist. LEXIS 177250, at *14.

[17] Id. at *15–16.

[18] Id. at *15.

[19] See id. at *20.

[20] See id. at *16, *17–18, *20.

[21] Id. at *16.

[22] Id. at *17–18.

[23] Id. at *20. The government’s argument was that value is provided to TikTok simply by users’ presence on the application. Id.

[24] Id.

[25] See id. at *20–21 (“Plaintiffs have demonstrated that they are likely to succeed on their claim that the prohibitions constitute indirect regulation of ‘personal communication[s]’ or the exchange of ‘information or information materials.'”).

[26] Id. at *16

[27] Id. at *16–17.

[28] See id. at *17.

[29] See id. at *20.

[30] Id.

[31] Id.

[32] Id.

[33] Id. at *21–25.

[34] Id. at *26.

[35] Id. at *25–26.

[36] Commerce Department Statement on U.S. District Court Ruling on TikTok Preliminary Injunction, U.S. Dept. of Commerce (Sept. 27, 2020), https://www.commerce.gov/news/press-releases/2020/09/commerce-department-statement-us-district-court-ruling-tiktok.

[37] Christopher A. Casey et al., Cong. Rsch. Serv., R45618, The International Emergency Economic Powers Act: Origins, Evolution, and Use 17 (2020).

[38] See Julia Horowitz, Under Trump, the US Government Gives Many Foreign Deals a Closer Look, CNN (Mar. 16, 2018, 12:11 AM), https://money.cnn.com/2018/03/16/news/economy/trump-cfius-china-technology/index.html; Jeanne Whalen, TikTok was Just the Beginning: Trump Administration is Stepping Up Scrutiny of Past Chinese Tech Investments, Wash. Post. (Sept. 29, 2020, 3:12 PM), https://www.washingtonpost.com/technology/2020/09/29/cfius-review-past-chinese-investment/.

[39] See Adam O. Emmerich et al., Cross-Border M&A–2019 Checklist for Successful Acquisitions in the United States, Harv. L. Sch. F. on Corp. Governance (Jan. 30, 2019), https://corpgov.law.harvard.edu/2019/01/30/cross-border-ma-2019-checklist-for-successful-acquisitions-in-the-united-states/.

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8Oct

Knight Institute v. Trump: The Battle for the Block Button Continues

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By Gabriel L. Marx

Donald Trump is once again at the center of a legal dispute. The Forty-Fifth President of the United States has been no stranger to legal controversies during and before his presidency,[1] but the latest update in Knight First Amendment Institute at Columbia University v. Trump[2] has President Trump petitioning for a writ of certiorari to the Supreme Court after more than three years of litigation.[3]  

The case began in July 2017 when the Knight First Amendment Institute at Columbia University (“Knight Institute”) filed a lawsuit against President Trump in federal court alleging that he violated the First Amendment by blocking Twitter users from his @realDonaldTrump account after they criticized his policies and presidency.[4] The U.S. District Court for the Southern District of New York found that Donald Trump, as President, exercised sufficient control over the Twitter account such that the @realDonald Trump account was “susceptible to analysis under the Supreme Court’s [First Amendment] forum doctrines, and is properly characterized as a designated public forum.”[5] The District Court then held that President Trump’s blocking of these Twitter users was discrimination based on the users’ viewpoints and impermissible under the First Amendment.[6] In July 2019, a three-judge panel for the U.S. Court of Appeals for the Second Circuit unanimously affirmed the district court’s decision[7] and subsequently denied rehearing, sitting en banc, in March of this year.[8] Despite his lack of success so far, the administration has continued his fight against the Knight Institute as Acting Solicitor General Jefferey Wall submitted a petition for a writ of certiorari to the Supreme Court at the end of August.[9]

The petition includes both legal and policy-based arguments about the importance of the case.[10] In terms of legal arguments, Solicitor General Wall argues that the Second Circuit wrongly concluded that (1) President Trump’s blocking of the Twitter users was a state action susceptible to the First Amendment rather than an act of a private citizen; (2) the @realDonaldTrump account was a designated public forum; and (3) the governmental-speech doctrine, which would exempt President Trump’s account from a First Amendment challenge, did not apply to President Trump’s actions.[11] Putting the legal arguments aside, Solicitor General Wall also argues, “the court of appeals’ decision . . . has important legal and practical implications that reach beyond the circumstances of this case.”[12] That is, public officials are “increasingly likely to maintain social media accounts to communicate their views, both personal and official,”[13] so if the Second Circuit’s decision were allowed to stand, it would significantly hinder the ability of these public officials to choose who they want to interact with on their own accounts: a choice afforded to every other social media user.[14] According to the petition, this choice—or lack thereof—takes on an even greater significance when the public official in question in the President of the United States.[15]

In response, the Knight Institute filed its brief in opposition on Sept. 21.[16] The Knight Institute first argues that there is no reason for the Court to hear the case because amongst the various lower courts that have dealt with this issue, all agree that public officials blocking critics from their social media accounts violates the First Amendment.[17] It additionally argues that the second circuit properly concluded that blocking users from the @realDonaldTrump account was state action, was not government speech, and that the account itself is a public forum.[18] The Knight Institute also counters Solicitor General Wall’s policy-based arguments, asserting that the impact of the Second Circuit’s decision has not and will not hinder the President’s or other public officials’ use of social media to communicate to the general public.[19] Finally, the Knight Institute maintains that the only cases where the Court has granted certiorari solely due to presidential implications, and absent a circuit split, are those that deal with “fundamental issues of executive power” (such as separation-of-power concerns), unlike the case at hand, which only deals with whether President Trump can block Twitter users from his @realDonaldTrump account.[20]

Given the procedural history, the above arguments, and the fact that the Court usually only hears cases that have “national significance, might harmonize conflicting decisions in the federal circuit courts, and/or could have precedential value,”[21] it seems unlikely that the Court will grant certiorari. Looking at the procedural history, the two lower courts were in agreement that President Trump violated the First Amendment (with one panel holding that unanimously).[22] Therefore, the Court has little incentive to rehear a case that has already been decided so clearly, unless, as Solicitor General Wall argues, the court of appeals erred in its conclusions. The petition for rehearing was denied by the Second Circuit en banc, [23] however, so the decision has already been affirmed in some sense. Along similar lines, there is no conflict among federal circuit or district courts on the issue of public officials blocking users from their social media accounts, as the Knight Institute points out.[24] On the other hand, there has been an influx of cases dealing with this issue as of late,[25] so the Court might want to decide the issue once and for all to deter future litigation. Nevertheless, given, again, that so many lower courts are all in agreement on the issue, the Court probably will not wish to devote time and resources on a well-settled area of the law simply to deter future litigation—particularly as the issue does not reach an issue of traditional significance in executive authority, such as a separation-of-powers issue. As a final matter, neither the Court’s current make-up of Justices nor the projected addition of Amy Coney Barrett should have much effect on the decision-making process in light of the above factors weighing so heavily against granting certiorari.

While it is unlikely that the Court will grant President Trump’s petition, if it does grant certiorari, the case would be interesting to watch unfold at the nation’s highest court. If heard, Knight First Amendment Institute at Columbia University could set the precedent for the ever-prevalent issue of freedom of speech in social media, so it is certainly worth keeping an eye out for the Court’s decision on the petition for writ of certiorari in the coming weeks.

[1] See Peter Baker, Trump Is Fighting So Many Legal Battles, It’s Hard to Keep Track, N.Y. Times (Nov. 6, 2019), https://www.nytimes.com/2019/11/06/us/politics/donald-trump-lawsuits-investigations.html.

[2] 302 F. Supp. 3d 541 (S.D.N.Y. 2018), aff’d, 928 F.3d 226 (2d Cir. 2019).

[3] See Tucker Higgins, White House Asks Supreme Court to Let Trump Block Critics on Twitter, CNBC (Aug. 20, 2020, 12:00 PM), https://www.cnbc.com/2020/08/20/white-house-asks-supreme-court-to-let-trump-block-critics-on-twitter.html.

[4] See Knight Institute v. Trump, Knight First Amendment Inst. at Colum. Univ., https://knightcolumbia.org/cases/knight-institute-v-trump (last visited Oct. 8, 2020).

[5] Knight Inst., 302 F. Supp. 3d at 580.

[6] Id.

[7] See Knight First Amendment Inst. at Colum. Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019);Knight First Amendment Inst. at Colum. Univ., supra note 4.

[8] See Knight First Amendment Inst. at Colum. Univ. v. Trump, 953 F.3d 216 (2d Cir. 2020) (en banc); Knight First Amendment Inst. at Colum. Univ., supra note 4.

[9] See Petition for Writ of Certiorari, Knight First Amendment Inst. at Colum. Univ. v. Trump, No. 20-197 (Aug. 20, 2020), https://www.supremecourt.gov/DocketPDF/20/20-197/150726/20200820102824291_Knight%20First%20Amendment%20Inst.pdf.

[10] See id.

[11] Id. at 11–27.

[12] See id. at 27.

[13] See id. at 27–28.

[14] Id. at 28–29.

[15] See id. at 29.

[16] See Brief in Opposition, Knight Inst., No. 20-197 (Sept. 21, 2020), https://www.supremecourt.gov/DocketPDF/20/20-197/154505/20200921141934655_20-197%20BIO.pdf.

[17] See id. at 11–15.

[18] See id. at 15–28.

[19] See id. at 29.

[20] See id. at 30.

[21] Supreme Court Procedures,U.S. Cts., https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1 (last visited Oct. 8, 2020).

[22] See supra notes 5–8 and accompanying text.

[23] See supra note 8 and accompanying text.

[24] See supra note 17 and accompanying text.

[25] See Petition for Writ of Certiorari, supra note 9, at 28 n.2 (noting six recent cases from around the country concerning public officials’ blocking social media users on their personal accounts).

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1Oct

Bush v. Gore 2.0? Why the November Election Could Turn on a 6-3 Court

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Flowers and candles at the steps of the Supreme Court building in remembrance of Justice Ruth Bader Ginsburg. Photo by Gayatri Malhotra.

By Jacqueline K. Winters

On Sept. 26, less than two months before the election, President Donald Trump announced Amy Coney Barrett as his nominee for the Supreme Court.[1]  Considering Senate Majority Leader Mitch McConnell’s plans to swiftly move forward with the confirmation process and begin hearings on Oct. 12, it is likely that the Senate will confirm Barrett, a conservative and former clerk of Antonin Scalia’s,[2] before the November election.[3] Meanwhile, President Trump is employing rhetoric about voter fraud and a rigged election[4]—likely positioning himself to bring an Electoral College battle in front of the Court.[5] If history is precedent, a 6–3 conservative versus liberal Supreme Court composition would undoubtedly lend itself to a more favorable outcome for President Trump. The American public should anticipate that the confluence of these circumstances could result in Bush v. Gore[6]2.0—but this time, the battle may extend well beyond hanging chads.

There are a number of scenarios that could lead to the Supreme Court determining the fate of this election. One example, presented by Edward Foley of Ohio State University’s Moritz College of Law, would take place in the swing state of Pennsylvania.[7] If Trump is in the lead on election night, but Biden-friendly mail-in ballots flood in during the days following the election, a volatile partisan dispute could erupt.[8] In this scenario, Democratic Governor Tom Wolf could sign Pennsylvania’s certificate of ascertainment and list Democratic electors as the official Electoral College slate, while the Republican-led legislature appoints a different set of electors—a scenario that would result in legal challenges, possibly making its way up to the Supreme Court.[9] However, the Electoral Count Act of 1887[10] delegates the power to Congress to consider both sets of electors. Vice President Mike Pence could oversee the count in Congress, determining that Pennsylvania’s votes should be removed because the electoral slates conflict, causing Democrats to seek an injunction to stop this discount of Pennsylvania’s votes.[11] This is merely one illustration of partisan-fueled chaos that could ensue if there is a small margin between President Trump and Vice President Joe Biden on election night—a scenario ominously reminiscent of the 2000 election, but in an even more sharply divided political climate.[12] 

On Dec. 12, 2000, The United States Supreme Court announced in a 5–4 decision that the Supreme Court of Florida had violated the United States Constitution when it ordered a ballot recount in certain Florida districts.[13] In this historic decision, which resulted in George W. Bush assuming the presidency, the Court contended that the ballot recount violated the Equal Protection Clause of the Fourteenth Amendment because Florida counties were shifting vote-counting standards.[14] The Court’s decision reversed the Florida Supreme Court’s decision and stayed the manual recount of 42,000 “undervotes”—ballots on which automatic machine recounts had failed to detect a vote and which had not yet been manually recounted.[15] The decision was premised on the notion that the recount procedures—based on the clear intent standard, which required “‘a clear indication of the intent of the voter’”[16]—“did not satisfy [the] minimum requirement for non-arbitrary treatment of voters necessary, under the Equal Protection Clause, to secure [the] fundamental right to vote for President.”[17]

Since the 2000 decision, a holding the Court explicitly stated was “limited to the present circumstances,”[18] the precedential value of Bush v. Gore has been decidedly weak.[19] In Stewart v. Blackwell,[20] pertaining to Ohio’s use of punch card ballots and central-count optical scan systems, the U.S. District Court for the Northern District of Ohio’s relied upon Justice Souter’s dissent in Bush v. Gore to determine that different counties within the same state using different systems does not amount to a violation of the Equal Protection Clause.[21] The Sixth Circuit disagreed, reversing and remanding the district court’s decision.[22] In 2008’s Lemons v. Bradbury,[23] a plaintiff argued in front of the Ninth Circuit that county election officials lacking uniform statewide rules for verifying referendum signatures violated the rule set forth in Bush v. Gore.[24] The Ninth Circuit disagreed, stating that Oregon’s verification process did not violate voters’ constitutional rights.[25] 

In large part, lower court decisions that have relied on Bush v. Gore have generally been overturned or limited,[26] and until 2013, when Justice Clarence Thomas cited the case in a footnote of a dissenting opinion in an Arizona voter-registration case,[27] the Supreme Court had not cited the case for any proposition. Recently, however, President Trump and his campaign have invoked the case in legal battles in Nevada[28] and New Jersey,[29] undoubtedly in preparation for mounting a Bush v. Gore-inspired argument in front of the Supreme Court in November.

President Trump’s continued efforts to challenge the legitimacy of mail-in voting—despite the FBI’s findings that there is no evidence of any foreign plot to counterfeit or forge mail ballots[30]—are likely representative of his willingness to be fiercely litigious in November.  With a more-likely-than-not conservative Court and murky-at-best precedent, the November election will prove an uphill battle for Democrats. The precedential value of Bush v. Gore will be in the spotlight for the first time since 2000, and the Supreme Court will possibly provide clarity on this debated issue—potentially changing the course of American presidential elections for generations to come.

[1] Peter Baker & Nicholas Fandos, Trump Announces Barrett as Supreme Court Nominee, Describing Her as Heir to Scalia, N.Y. Times (Sept. 26, 2020), https://www.nytimes.com/2020/09/26/us/politics/amy-coney-barrett-supreme-court.html.  

[2] Id.

[3] Deirdre Walsh, What Amy Coney Barrett’s Supreme Court Nomination Means for the 2020 Election, Nat’l Pub. Radio (Sept. 27, 2020, 7:00 AM), https://www.npr.org/2020/09/27/917303199/what-amy-coney-barretts-supreme-court-nomination-means-for-the-2020-election.  

[4] Miles Parks, Ignoring FBI and Fellow Republicans, Trump Continues Assault on Mail-In Voting, Nat’l Pub. Radio  (Aug. 28, 2020, 12:46 PM), https://www.npr.org/2020/08/28/906676695/ignoring-fbi-and-fellow-republicans-trump-continues-assault-on-mail-in-voting.

[5] Jeet Heer, Trump Wants Another ‘Bush v. Gore,’  The Nation (Sept. 23, 2020), https://www.thenation.com/article/politics/trump-court-election-vacancy/.

[6] 531 U.S. 98 (2000).

[7] Geoffrey Skelley, What If Trump Loses and Won’t Leave?, FiveThirtyEight (Sept. 14, 2020, 9:15 AM), https://fivethirtyeight.com/features/what-if-trump-loses-and-wont-leave/.

[8] Id.

[9] Id.

[10] Id.; see Electoral Count Act, ch. 90, 24 Stat. 373 (1887) (codified as amended at 3 U.S.C. §§ 5–7, 15–18).

[11]  Skelley, supra note 7.

[12] Dean Bonner, Voter Registration Is Up Sharply, as Is Partisanship, Pub. Pol’y Inst. of Cal. (Aug. 27, 2020), https://www.ppic.org/blog/voter-registration-is-up-sharply-as-is-partisanship/. 

[13] Bush v. Gore, 531 U.S. 98, 103 (2000).

[14] Id. at 106.

[15] Id. at 100.

[16] Id. at 131.

[17] Id. at 98.

[18] Id. at 109.

[19] Chad Flanders, Please Don’t Cite This Case!: The Precedential Value of Bush v. Gore, 116 Yale L.J. Pocket Part 141, 144 (2006), https://www.yalelawjournal.org/forum/please-dona8217t-cite-this-case-the-precedential-value-of-bush-v-gore.

[20] Stewart v. Blackwell, 356 F. Supp. 2d 791 (N.D. Ohio 2004), rev’d in part, vacated in part, 444 F.3d 843 (6th Cir. 2006), vacated as moot, 473 F.3d 692 (6th Cir. 2007).

[21] Id. at 808.

[22] Stewart v. Blackwell, 444 F.3d 843, 880 (6th Cir. 2006), vacated as moot, 473 F.3d 692 (6th Cir. 2007).

[23] 538 F.3d 1098 (2008).

[24] Id. at 1105.

[25] Id. at 1107.

[26] Richard L. Hasen, The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, 81 Geo. Wash. L. Rev. 1865, 1867 (2013).

[27] Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 35 n.2 (2013) (Thomas, J., dissenting); see Joan Biskupic, Trump Revives Bush v. Gore in His Crusade Against Mail-In Voting, CNN Pol. (Aug. 24, 2020), https://edition.cnn.com/2020/08/24/politics/supreme-court-bush-gore-trump-lawsuits/index.html.  

[28] United States District Court Judge James Mahan dismissed the Trump campaign’s case in Nevada, stating that a law that calls for mail-in ballots to be sent automatically to all active Nevada voters in light of the coronavirus pandemic did not demonstrate any constitutional harms. See Donald J. Trump for President, Inc. v. Cegavske, No. 20-CV-1445, 2020 WL 5626974, at *7 (D. Nev. Sept. 18, 2020); see also Michelle L. Price, Judge Dismisses Trump Challenge to Nevada Mail Voting Law; Associated Press (Sept. 21, 2020), https://apnews.com/article/nevada-lawsuits-elections-voting-fraud-and-irregularities-campaigns-17adaf09734fd720b1a1477451f2540c; Biskupic, supra note 27.

[29] See Complaint for Declaratory & Injunctive Relief at 155, Donald Trump for President, Inc. v. Murphy, No. 20-CV-10753, (D.N.J. Aug. 18, 2020), ECF No. 1; see also Biskupic, supra note 27.

[30] Parks, supra note 4.

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17Apr

Can He Do That? President’s Executive Order Encourages Mining on Moon, Asteroids

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A United States Marine Corps helicopter is seen flying through this scene of the full Moon and the U.S. Capitol on Tuesday, Feb. 7, 2012 from Arlington National Cemetery. Photo Credit: (NASA/Bill Ingalls)

By Chris Flurry

President Donald Trump issued an Executive Order on Apr. 6, 2020, with potentially out-of-this-world implications.[1]  The order encourages the U.S. and international communities – public and private – to support the exploration, recovery, and use of extraterrestrial resources.[2]  While the order may seem to come at a surprising time,[3] it has reportedly been in the works for more than a year.[4]

The present administration has made no secret of its interest in outer space.  In December 2017, the President issued a memorandum updating an Obama-era policy directive on the topic.[5]  This memorandum replaced existing “far reaching exploration milestones” with an immediate call for the “return of humans to the Moon.”[6]  Additionally, since February 2018, President Trump has shown interest in an expanded military role in space.[7]  The U.S. Space Force became the newest branch of the U.S. military on Dec. 20, 2019, charged with the missions of “developing military space professionals” and “maturing the military doctrine for space power.”[8]

The new executive order appears commercial rather than military in nature.  In the order, President Trump identifies commercial entities’ “[u]ncertainty regarding the right to recover and use space resources” as a limitation on existing policy.[9]  Dr. Scott Pace, executive secretary of the National Space Council provided that the order, “establishes U.S. policy toward the recovery and use of space resources, such as water and certain minerals, in order to encourage the commercial development of space.”[10]  This all of course begs the question: Can the President of the United States tell the rest of the world what to do with space?

The answer, as it happens, is a complicated one.  The President notes in the order that authority is derived from the U.S. Constitution and statute.[11]  Constitutionally, the President has broad powers in foreign affairs – though those powers are far from unlimited.  For example, the President may enter into treaties, but only with the “advice and consent of the Senate” and two-thirds concurrence.[12]  The Constitution also retained to Congress the power to “regulate commerce with foreign nations” and “define and punish . . . offenses against the laws of nations.”[13]

The statutory authority for the order is more straightforward.  The U.S. Commercial Space Launch Competitiveness Act, signed into law in 2015, speaks specifically to commercial exploration and recovery of “space resources.”[14]  By statute, these resources are defined as “abiotic resource[s] in situ in outer space,” expressly including water and minerals.[15]  The Act charges the President, via appropriate agencies, to facilitate commercial exploration and recovery of space resources, discourage government barriers in the United States to this exploration and recovery, and “promote the right” of U.S. citizens to this exploration and recovery “in accordance with the international obligations of the United States and subject to authorization and continuing supervision by the Federal Government.”[16]

Presently, those “international obligations” primarily include a pair of documents, the 1967 “Outer Space Treaty”[17] and the 1979 “Moon Agreement.”[18]  On the surface, the two may appear similar.  Both the Outer Space Treaty and Moon Agreement specify that international law controls extraterrestrial affairs.[19]  They also restrict military activity in space, particularly regarding nuclear weapons,[20] and establishing bases and conducting weapons testing.[21]  Generally, both documents promote international “principle[s] of co-operation and mutual assistance” in space exploration and research.[22]

The two documents differ; however, in the limits a party may have in that exploration.  While the Outer Space Treaty requires commercial activities be carried out under the authorization and supervision of a nation which is party to the treaty,[23] the Moon Agreement goes further.  Under the Moon Agreement, the moon itself nor any of its resources may become property of any party – including commercial entities.[24]  While the Moon Agreement does not expressly bar recovery of resources from the moon, it does specify these resources should be only be exploited under the supervision of an international regime, with the purpose of “rational management” and “equitable sharing” of those resources.[25]

Under the Moon Agreement, “the moon and its natural resources are the common resources of mankind.”[26]   However, according to the President Trump’s Apr. 6, 2020, order, “the United States does not view [outer space] as a global commons.”[27]  The order further notes that the United States is not amongst the eighteen parties to the Moon Agreement and charges the Secretary of State to “object to any attempt . . . to treat the Moon Agreement as reflecting or otherwise expressing customary international law.”[28]  The executive order further specifies as a next step for the State, Commerce, and Transportation departments, NASA, and any other departments or agencies specified by the Secretary of State, to “take all appropriate actions to encourage international support” for recovering and using space resources.[29]   Specifically, the order empowers the Secretary of State to seek bilateral and multilateral arrangements for extraterrestrial resource exploitation.[30]

Such “arrangements” need not, of course be treaties – keeping actions derived from the Executive Order outside those powers maintained by Congress by the Constitution.  Certainly the President’s charge to departments and agencies to garner international support for moon resource recovery lies within the congressional mandate to “promote the rights of United States citizens” to mine the moon.[31]  Further, as the United States is party to the 1967 Outer Space Treaty, but not the more limited 1979 Moon Agreement, promoting commercial exploration and exploitation of lunar resources arguably lies within those “international obligations” specified by statute.[32] 

While the President’s Apr. 6, 2020, order has the potential for solar system-wide implications, its origins are likely much more domestic in nature.  The President and his administration have sought to return to the moon by 2024;[33] however, members of Congress have sought longer timelines.[34]  Garnering further commercial support for expeditions to the moon, and beyond, could be critical to astronauts venturing to the moon or mars on any timeline,[35] and conceptually commercial rights to those resources are an important part of the conversation.  “Outer space is a legally and physically unique domain of human activity,” the Executive Order notes.[36]  Without real international agreement on the best ways to explore, recover, use, and protect resources in outer space, the “Executive Order on Encouraging International Support for the Recovery and Use of Space Resources” at least moves the conversation forward on what a solution may look like.  While an order pursuing commercial extraction of resources from the moon and asteroids may stand shockingly juxtaposed to international movements of the 20th Century to safeguard extraterrestrial resources, it is an affirmation of – rather than a departure from – U.S. space policy for much of the last decade.

[1] Michael Sheetz, Trump Wants More Countries to Join U.S. Policy Approach to Space Resources, Lunar Mining, CNBC (Apr. 6, 2020, 3:29 PM), https://www.cnbc.com/2020/04/06/trump-executive-order-on-us-space-resources-and-mining-policy.html.

[2] Exec. Order No. 13,914, 85 Fed. Reg. 20,381 (Apr. 10, 2020), https://www.govinfo.gov/content/pkg/FR-2020-04-10/pdf/2020-07800.pdf.

[3] The COVID-19 pandemic and its effects have required significant attention from global leaders in the spring of 2020. See generally COVID-19 Threatening Global Peace and Security, UN Chief Warns, UN News (Apr. 10, 2020), https://news.un.org/en/story/2020/04/1061502.

[4] See Sheetz, supra note 1.

[5] Memorandum on Reinvigorating America’s Future Space Exploration Program, 2017 Comp. Pres. Doc. 902 (Dec. 11, 2018), https://www.govinfo.gov/content/pkg/DCPD-201700902/pdf/DCPD-201700902.pdf.  

[6] Id.

[7] Marina Koren, What Does Trump Mean by “Space Force?” The Atlantic (Mar. 13, 2018), https://www.theatlantic.com/science/archive/2018/03/trump-space-force-nasa/555560/.

[8] U.S. Space Force Fact Sheet, U.S. Space Force, https://www.spaceforce.mil/About-Us/Fact-Sheet (last visited Apr. 13, 2020).

[9] Exec. Order No. 13,914, supra note 2, at § 1.

[10] President Signs Executive Order on Space Resource Utilization, Off. of Space.Com (Apr. 6, 2020), https://www.space.commerce.gov/president-signs-executive-order-on-space-resource-utilization/.

[11] Exec. Order No. 13,914, supra note 2, at § 1.

[12] U.S. Const. art. II, § 2.

[13] U.S. Const. art. I, § 8.

[14] 51 U.S.C. §§ 51301-51303 (2018).

[15] 51 U.S.C. § 51301.

[16] 51 U.S.C. § 51302.

[17] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967) [hereinafter Outer Space Treaty], https://treaties.un.org/doc/Publication/UNTS/Volume%20610/volume-610-I-8843-English.pdf.

[18] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature May 12, 1979, 1353 U.N.T.S. 3 (entered into force July 11, 1984) [hereinafter Moon Agreement], https://treaties.un.org/doc/Publication/UNTS/Volume%201363/volume-1363-I-23002-English.pdf.

[19] Outer Space Treaty, supra note 17, at 208; Moon Agreement, supra note 18, at 22.

[20] Outer Space Treaty, supra note 17, at 208; Moon Agreement, supra note 18, at 23.

[21] Outer Space Treaty, supra note 17, at 208; Moon Agreement, supra note 18, at 23.

[22] Outer Space Treaty, supra note 17, at 207; Moon Agreement, supra note 18, at 23.

[23] Outer Space Treaty, supra note 17, at 209.

[24] Moon Agreement, supra note 18, at 25.

[25] Id.

[26] Id.

[27] Exec. Order No. 13,914, supra note 2, at § 1.

[28] Id. at § 2.

[29] Id. at § 3.

[30] Id.

[31] 51 U.S.C. § 51302(a)(3).

[32] Id. § 51302(a)(2).

[33] NASA has expressed the 2024 timeline in much of its public-facing documents regarding the plan. See generally Apollo’s Legacy Is NASA’s Future, NASA, https://www.nasa.gov/specials/apollo50th/back.html (last visited Apr. 13, 2020) (“[E]xperiences and partnerships will enable NASA to go back to the Moon in 2024 – this time to stay — with the U.S. leading a coalition of nations and industry); What Is Artemis?, NASA (July 25, 2019),https://www.nasa.gov/what-is-artemis (“NASA is committed to landing American astronauts, including the first woman and the next man, on the Moon by 2024.”).

[34] Elizabeth Howell, Proposed House Bill Pushes NASA’s Crewed Landing Back to 2028, Space.Com (Jan. 28, 2020), https://www.space.com/house-bill-nasa-moon-landing-2028.html.

[35] Caroline Delbert, Trump Makes It Official: The U.S. Will Mine the Moon, Popular Mech. (Apr. 8, 2020) https://www.popularmechanics.com/space/a32082958/trump-moon-mining-asteroids/.

[36] Exec. Order No. 13,914, supra note 2, at § 1.

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1Nov

Emoluments: The Constitution’s “Phony” Clauses

Categories: Current Issues Blog
Comments Off on Emoluments: The Constitution’s “Phony” Clauses

By Jon Schlotterback

On October 15, 2019, the Fourth Circuit Court of Appeals issued an Order for rehearing one of the lawsuits filed against President Trump for alleged violations of the Emoluments Clauses.[1]  This Order came after the Fourth Circuit had previously reversed a district court decision that held the District of Columbia and State of Maryland had standing to pursue such a claim against the President.[2]  Despite President Trump’s reference to the “phony Emoluments Clause”[3] in response to the reversal of the decision to host the G-7 Summit at his Miami Doral resort,[4] the Clauses are real, and the rehearing presents interesting questions of Constitutional authority over the President.

Most modern Presidents, upon taking office, have put their business interests in a blind trust for the duration of their service.[5]  This was done to address the underlying need for the Emoluments Clauses: to prevent even an appearance of a conflict of interest between the office of the Presidency and personal wealth.[6]  President Trump decided to break with that tradition and transfer the management of his business interests to his sons, Donald Jr. and Eric Trump, while retaining an interest from which he could take disbursements at any time.[7]  In addition to this change from past administrations, the President’s business interests are more visible because of his high-profile eponymous real estate properties.[8]  Emoluments Clause litigation centers around whether the President has impermissibly profited from the office through his business interests.[9]

The U.S. Constitution has three Emoluments Clauses.  First, the Foreign Emoluments Clause entails that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”[10]  This Clause is “concerned with preventing U.S. officials from being corrupted or unduly influenced by gifts or titles from foreign governments.”[11]  Second, the Domestic Emoluments Clause pertains more directly to the actions of the President, stating “The President shall . . . 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.”[12]  This Clause is “concerned with ensuring presidential independence and preventing the President from being improperly swayed by the States.”[13]  Third is the Ineligibility Clause, [14]  not at issue in this situation.

After President Trump’s election in 2016, three lawsuits were filed to challenge his alleged violations of the Emoluments Clauses.  First, Citizens for Responsibility & Ethics in Washington v. Trump[15] was filed in the Second Circuit alleging violations of the Domestic and Foreign Emoluments Clauses based upon both the General Services Administration’s lease with Trump International Hotel (the “Hotel”) and payments from foreign government agents to the Hotel.[16]  Second, District of Columbia v. Trump,[17] discussed below, alleged violations of the Domestic and Foreign Emoluments Clauses.[18]  Third, Blumenthal v. Trump[19] was filed by members of Congress alleging violations of the Foreign Emoluments Clause as a result of foreign government payments both at properties owned by the President and in the form of licensing deals for the President’s business entities.[20]  These lawsuits represent some of the first Emoluments Clauses challenges and are testing the waters to see how courts will deal with issues of standing, the limits of the prohibitions, and enforcement of the Clauses.[21]

On February 23, 2018, the District of Columbia and State of Maryland filed their suit against the President in both his individual and official capacity.[22]   The complaint detailed several instances of alleged violations of the Foreign Emoluments Clause, including over $270,000 received from an agent of Saudi Arabia for lodging and meals at the Hotel.[23]  Furthermore, the compliant alleged violations of the Domestic Emoluments Clause through a lease with the General Services Administration, $32 million in tax credits for the Hotel, and advertisements of Trump’s Mar-a-Lago resort on a State Department-managed website.[24]  The arguments are focused on issues of standing and the meaning of the term “emolument.”[25]

On March 28, 2018, the district court filed an opinion addressing one of the primary obstacles to an Emoluments Clause challenge: standing.[26]  Primarily discussing whether the plaintiffs had suffered an injury in fact, the court found that Plaintiffs had suffered injuries based on quasi-sovereign, proprietary, and parens patriae[27] interests with respect to “Trump International Hotel and its appurtenances in Washington, D.C. as well as the operations of the Trump Organization with respect to the same,” but found no standing for any of the other Trump Organization businesses challenged.[28]

Reasoning that states will feel coerced into a dilemma of either giving the Trump Organization sought-after tax breaks (and thus losing revenue) or denying the requests and losing the favor of the President to other states, the court found the Plaintiffs had established injury to quasi-sovereign interests.[29]  Injury to proprietary interests was found to have been successfully pleaded by unfair competition in the form of the District of Columbia’s Washington Convention Center and Maryland’s Bethesda Marriott Conference Center, both highly similar venues to the Hotel.[30]  The Plaintiffs argued their venues lost business to the Hotel as a result of the President’s alleged violations of the Emoluments Clauses.[31]  Finally, the court found the Plaintiffs had sufficiently pled injury to parens patriae interests of the Plaintiffs’ residents through the effect of unfair competition on each Plaintiffs’ hospitality market.[32]  The court deferred ruling on the President’s motion to dismiss based on absolute immunity in his individual capacity.[33]

On July 25, 2018, the district court then issued another opinion upholding the Plaintiffs’ suit and adopting a broad definition of “emolument” to extend “to any profit, gain, or advantage, of more than de minimis value, received by him, directly or indirectly, from foreign, the federal, or domestic governments.”[34]  This definition also included “profits from private transactions, even those involving services given at fair market values,”[35] thereby rejecting one of the President’s arguments that “private transactions unrelated to compensation in exchange for the performance of official duties or personal services” are not emoluments.[36]  After the ruling, the President asked the district court to certify an interlocutory appeal to the Fourth Circuit, but the motion was denied.[37]  The court once more deferred to rule on the issue of absolute immunity but issued an order to begin discovery.  Arguing the discovery order effectively denied him an absolute immunity defense, the President filed a request for a writ of mandamus.[38]

In opposing the President’s request for mandamus, the Plaintiffs argued the district court’s definition of emolument was correct and asserted that dictionaries from the late-eighteenth century frequently gave the term a broad meaning.[39]  Additionally, they emphasized earlier contentions that the President’s violations of the Emoluments Clauses harmed quasi-sovereign, parens patriae, and proprietary interests.[40]  In reply, the President argued that any “fear of retaliation” and subsequent harm to these interests was “self-inflicted” and that other Founding-era dictionaries contained definitions of “emolument” that significantly narrowed the scope to “compensation accepted from a foreign or domestic government for services rendered by an officer in either an official capacity or an employment-type relationship.”[41]  Asserting that the Emoluments Clauses could not have such a broad definition, the President also pointed to the actions of George Washington who, while President and in his private capacity, purchased federal land located in what is now the District of Columbia.[42]  Finally, the President asserted that to accept the district court’s definition would also find unconstitutional the actions of President Obama in his retention of treasury bonds and royalties on foreign book sales.[43]  After granting a stay on the district court’s proceeding, the Fourth Circuit asserted its authority to hear the case.[44] 

In separately filed opinions, the Fourth Circuit reversed the rulings of the district court for claims against the President in both his official and individual capacity.[45]  The court noted that the suit was extraordinary by reason that it “is brought directly under the Constitution without a statutory cause of action, seeking to enforce the Emoluments Clauses which . . . give no rights and provide no remedies,” “seeks an injunction directly against a sitting President” and “no court has ever entertained a claim to enforce [the Emoluments Clauses].”[46]  Finding that the harm inflicted upon the Plaintiffs’ proprietary and parens patriae interests was too attenuated to provide standing, and that the quasi-sovereign interests were merely a “general grievance, insufficient to amount to a case or controversy in the meaning of Article III,” the court found the Plaintiffs lacked standing on all claims.[47] 

Upon petition, the Fourth Circuit has agreed to rehear the case en banc in December, thus reopening the issue.[48]  Because the Second Circuit did find the plaintiffs had standing in Citizens for Responsibility & Ethics in Washington v. Trump,[49] an affirmation of the Fourth Circuit’s original decision could be the circuit split necessary to prompt review from the Supreme Court.  Of course, President Trump could have avoided all of these suits by placing his business interests in a blind trust, as is the modern practice for sitting Presidents.[50]  By declining to create the trust, however, he has provided an opportunity for plaintiffs to wade into the unknown waters of the Emolument Clauses.  Every American, regardless of their political affiliation, should be concerned about whether a sitting President is being influenced by his business interests rather than the interests of the nation.  District of Columbia v. Trump provides an opportunity to ensure the nation’s chief executive officer is acting in the country’s best interests.

[1] Order at 2, District of Columbia v. Trump, 930 F.3d 209 (4th Cir. 2019) (No. 18-2488).

[2] District of Columbia, 930 F.3d at 215; In re Trump, 928 F.3d 360, 379–80 (4th Cir. 2019).

[3] John Haltiwanger, Trump Said Emoluments Clause in US Constitution Is ‘Phony’, Bus. Insider (Oct. 21, 2019), https://www.businessinsider.com/trump-said-emoluments-clause-in-us-constitution-is-phony-2019-10.

[4] David Smiley, Michael Wilner, & Francesca Chambers, Pulling G-7 Out of Doral the ‘Right Decision,’ Mulvaney Says, Miami Herald (Oct. 20, 2019), https://www.miamiherald.com/news/politics-government/article236461658.html.

[5] See Ciara Torres-Spelliscy, A Federal Appeals Court Asserts Its Authority over Trump’s Unconstitutional Profiteering, Brennan Ctr. for Justice (Sept. 16, 2019), https://www.brennancenter.org/our-work/analysis-opinion/federal-appeals-court-asserts-its-authority-over-trumps-unconstitutional.

[6] See Brief of Appellees at 2, District of Columbia, 930 F.3d 209 (No. 18-2488).

[7] Amended Complaint at 12–13, District of Columbia v. Trump, 291 F. Supp. 3d 725 (D. Md. 2018) (No. PJM 17-1596).

[8] Joy Blenman, The Companies Owned by Donald Trump, Investopedia, https://www.investopedia.com/updates/donald-trump-companies/ (last updated May 21, 2019).

[9] See generally Amended Complaint, supra note 7.

[10] U.S. Const. art. I, § 9, cl. 8.

[11] In re Trump, 928 F.3d 360, 373 (4th Cir. 2019).

[12] U.S. Const. art. II, § 1, cl. 7.

[13] In re Trump, 928 F.3d at 373.

[14] U.S. Const. art. I, § 6, cl. 2.

[15] 276 F. Supp. 3d 174 (S.D.N.Y. 2017), vacated, No. 18-474, 2019 U.S. App. LEXIS 27634 (2d Cir. Sept. 13, 2019) (finding a group of restaurants and restaurant workers had standing to pursue a claim for violations of the Domestic and Foreign Emoluments Clauses).

[16] Citizens for Responsibility & Ethics in Wash., 2019 U.S. App. LEXIS 27634, at *4–8.

[17] 291 F. Supp. 3d 725 (D. Md. 2018), rev’d, 930 F.3d 209 (4th Cir. 2019).

[18] District of Columbia, 291 F. Supp. 3d at 733–34.

[19] 335 F. Supp. 3d 45 (D.D.C.), appeal docketed, No. 19-5237, filed Sept. 4, 2019 (D.C. Cir.).  The plaintiffs have argued that, because the Foreign Emoluments Clause permits acceptance of foreign emoluments only by consent of Congress, President Trump has denied them an opportunity to vote on acceptance of such emoluments and therefore caused injury.  Blumenthal, 335 F. Supp. 3d at 50.

[20] Id. at 51.

[21] In re Trump, 928 F.3d 360, 368 (4th Cir. 2019).

[22] Amended Complaint at 2, supra note 7.

[23] Id. at 15–16.

[24] Id. at 26–30.

[25] See generally Brief of Appellees, supra note 6.

[26] District of Columbia, 291 F. Supp. 3d at 737.  The court noted that standing could be established when a plaintiff sufficiently alleged facts showing “it has (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”  Id.

[27] Id. at 746 n.14 (“[P]arens patriae refers to the theory of standing by which a State may assert a quasi-sovereign interest, i.e., ‘public or governmental interests that concern the State as a whole,’ on behalf of its citizens.”) (citations omitted).

[28] Id. at 753, 757.

[29] Id. at 740–42.

[30] Id. at 742–43.

[31] Id.

[32] Id. at 746–48.

[33] Id. at 758.

[34] District of Columbia v. Trump, 315 F. Supp. 3d 875, 904 (D. Md. 2018).

[35] Id.

[36] Appellant’s Opening Brief at 37–38, District of Columbia v. Trump, 930 F.3d 209 (4th Cir. 2019) (No. 18-2488).

[37] In re Trump, 928 F.3d 360, 367 (4th Cir. 2019).

[38] Id. at 368.  Mandamus is “[a] writ issued by a court to compel performance of a particular act by a lower court or a governmental officer or body, usu[ally] to correct a prior action or failure to act.”  Mandamus, Black’s Law Dictionary (11th ed. 2019).  “This is a ‘drastic and extraordinary’ remedy ‘reserved for really extraordinary causes,’ therefore it “is one of ‘the most potent weapons in the judicial arsenal.’”  Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947); then quoting Will v. United States, 389 U.S. 90, 107 (1967)).  Mandamus will only be granted when a party can establish that: “(1) no other adequate means [exist] to attain the relief [desired]; (2) the party’s right to issuance of the writ is clear and indisputable; and (3) the writ is appropriate under the circumstances.”  Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (citations omitted).

[39] Respondents’ Brief in Opposition to Petition for Writ of Mandamus at 40, In re Trump, 928 F.3d 360 (No. 18-2486).

[40] Id. at 56–68.

[41] Reply Brief for Petitioner at 9, 15, In re Trump, 928 F.3d 360 (No. 18-2486) (internal citation omitted).

[42] Appellant’s Opening Brief, supra note 36, at 43–44.

[43] Id. at 45.

[44] District of Columbia v. Trump, 930 F.3d 209, 211 (4th Cir. 2019); In re Trump, 928 F.3d at 364.  Although Plaintiffs attempted to voluntarily dismiss the individual capacity suit, this happened only after the Fourth Circuit took the appeal.  District of Columbia, 930 F.3d at 214.

[45] District of Columbia, 930 F.3d at 215; In re Trump, 928 F.3d at 379–80.

[46] In re Trump, 928 F.3d at 368.

[47] Id. at 376–77, 379.

[48] Order at 2, supra note 1.

[49] No. 18-474, 2019 U.S. App. LEXIS 27634 (2d Cir. Sept. 13, 2019).

[50] See Torres-Spelliscy, supra note 5.

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