An attorney for President Trump, Jay Sekulow, told POLITICO Thursday that Trump will take the issue to the high court.
„We disagree with the decision of the Fourth Circuit,“ Sekulow said in a text message. „This case is another example of presidential harassment. We will be seeking review at the Supreme Court.“
Sekulow said a motion to put the case on hold to allow for the Supreme Court appeal will be filed shortly.
A spokeswoman for the Justice Department, which also represented Trump in the case, said only that officials were reviewing the decision.
The 4th Circuit’s full bench essentially split along ideological lines with the Democratic appointees turning down Trump’s attempt to halt discovery ordered by a federal district court judge in Maryland, and the Republican-appointed ones siding with Trump.
Chief Judge Roger Gregory, who was recess appointed by President Bill Clinton and got a permanent appointment under President George W. Bush, joined those ruling against Trump.
An all GOP-appointed panel of the 4th Circuit had previously voted unanimously to shut down the suit the Maryland and D.C. attorneys general filed back in 2017.
The key majority opinion issued Thursday held that, because of the posture of the case, Trump needed extraordinarily strong arguments to prove that District Court Judge Peter Messitte erred by allowing the fact-finding discovery process to proceed.
Judge Diana Motz said that even if Messitte erred, the president had not shown he had an „indisputable“ right to shut down the suit, which would be required for the appeals court to step in at this stage. Motz, an appointee of President Bill Clinton, also said the records D.C. and Maryland were seeking at this point in no way intruded on Trump’s official duties.
„The discovery here — business records as to hotel stays and restaurant expenses, sought from private third parties and low-level government employees — implicates no Executive power. The President has not explained, nor do we see, how requests pertaining to spending at a private restaurant and hotel threaten any Executive Branch prerogative,“ she wrote.
Judge J. Harvie Wilkinson, writing for all six dissenters, said it was evident that Maryland and D.C. were trying to mire Trump in litigation for partisan reasons.
„Would it not be fair for our fellow Americans to suspect that something other than law was afoot?“ he wrote.
„The plaintiffs here are attempting nothing less than to enjoin the President of the United States for official actions taken while in office. They are seeking to harness the coercive machinery of legal process to drag the President through what are coming to seem more and more like interminable proceedings.“
A heated oral argument session in December before the 15 active 4th Circuit judges led to bitter cross-bench exchanges that sometimes seemed to render the arguing lawyers superfluous.
Those sparks flew again in Thursday’s opinions, where the dissenting judges accused their colleagues in the majority of being tools of the president’s Democratic opponents.
„In opening the door to suing a president who has visited not the slightest concrete harm on any plaintiff in this action, we invite 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,“ wrote Wilkinson. „When partisan fevers grip the national government, the judiciary must operate as a non-partisan counterweight and discourage suits whose inevitable denouement will make us part of the political scrum.“
The judges in the majority bridled at that language.
„The dissent portrays us as ‘partisan warriors’ acting with an ‘absence of restraint … incompatible with the dictates of the law,'“ Motz wrote. „But we remain confident that our narrow holding, reached with careful attention to the standard of review, is the essence of restraint. Readers may compare our measured approach with the dramatics of the dissent and draw their own conclusions.“
Another Democrat-appointed judge was less measured in his response, accusing the dissenters of disparaging their colleagues as „political hacks.“
„The dissenting opinions, in a disappointing display of judicial immodesty, have made this case into something it is not,“ wrote Judge James Wynn, an appointee of President Barack Obama. „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.“
Wynn accused the dissenters of a „naked“ defiance of precedent and procedure to shut down the Maryland and D.C. suit simply because they disagree with it. And, as he defended the Democratic appointees in the majority, he invoked an unusual statement from Chief Justice John Roberts rebuking Trump for suggesting that judges are partisan combatants.
„We have a duty to do our level best to do equal right to the parties who appear before us,“ Wynn wrote. „When all is said and done, the majority opinion here represents a dedicated group of judges doing just that.“
Two other appeals courts have reached disparate rulings on similar suits filed in other courts.
In February, the D.C. Circuit threw out a suit hundreds of Democratic lawmakers filed challenging Trump’s handling of profits derived from foreign government. That ruling rested on the technical grounds that individual lawmakers could not pursue such a suit.
Last September, a three-judge panel of the New York-based 2nd Circuit revived a suit that hospitality industry business owners and employees brought making similar claims against the president. The Justice Department asked the full bench of that appeals court to review the decision. There has been no ruling on that request, which has effectively kept that suit on ice for more than half a year.
The Trump Organization announced last October that it was seeking a buyer for the Trump International Hotel, which opened in 2016 and operates under a lease from the federal government. Trump’s son Eric said in a statement at the time that the decision to try to sell the hotel was spurred in part by public complaints about the hotel’s profits.
Source: politico.com
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