Donald Trump’s tried yet again to pump the brakes on the emoluments challenge brought by Maryland and D.C. and yet again he’s failed. Maryland Attorney General Brian Frosh and D.C. Attorney General Karl Racine are suing Trump for violating the Constitution by accepting gifts, or emoluments, from state and foreign governments. There’s a whole clause (or two) on it.
Trump was fighting the court’s preliminary decisions—namely, that Maryland and D.C. have standing and that “emoluments” does include “any ‘profit,’ ‘gain’ or ‘advantage’ of a more than de minimis nature.” He tried to duck trial by lodging an “interlocutory” appeal, meaning he wanted to take these initial questions to the federal appellate court. Trump also asked that the court pause discovery in the meantime, of course.
Interlocutory appeals are rare; it’s even rarer that they’re granted. That’s because they rarely make sense—you’re asking the district court to send part of the case to the appellate court, the appellate to rule so the district court can take it back, all before the district court reaches a final decision from which the parties can appeal back to the appellate court.
The criteria are stringent: An interlocutory appeal is warranted only when there’s “ … a controlling question of law  as to which there is substantial ground for difference of opinion  and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.”
Trump argued that his case involves at least four controlling questions of law, all of which involve “substantial ground for difference of opinion.” He challenged not just the emolument and standing determinations but the court’s ability to grant relief against the president at all.
Plaintiffs’ citation-based reply was delightful. As the judge notes, Maryland and D.C. “insist[ed] that a party’s ‘own disappointment or disagreement with the outcome of an order does not rise to the level of substantial doubt.’”
Judge Peter Messitte of the U.S. District Court for the District of Maryland takes a careful 30 pages to walk through the absurdity of Trump’s interlocutory appeal.
BREAKING: the judge in DC/MD #emoluments case just denied the President's motions for leave to appeal & to stay discovery. Another big win for @BrianFrosh & @AGKarlRacine & co-counsel including we at @CREWcrew, @deepakguptalaw & @CohenMilstein. Discovery schedule due in 20 days! pic.twitter.com/9XiSEeFIYN
— Norm Eisen (@NormEisen) November 2, 2018
Messitte was able to dispense with the bid to delay discovery even more quickly than the interlocutory appeal. The same language that defines which questions may be certified for consideration by the appellate court notes that “’[t]hat application … shall not stay proceedings’ unless ordered by the district judge or appellate court.” Nice try.
What does that mean?
BREAKING EMOLUMENTS NEWS: On to discovery! pic.twitter.com/L6vCMTpORp
— Citizens for Ethics (@CREWcrew) November 2, 2018
Discovery is coming. And that’s what Trump fears most—anything from tax returns to Russian connections could come to light, not to mention the likely showdown over a presidential deposition.
This is a Creative Commons article. The original version of this article appeared here.