Rule of Law

It’s Emoluments Week in US Appeals Courts: Meet the Lawyers Arguing

DOJ’s Hashim Mooppan, a former Jones Day partner, will argue within a span of days in the D.C. and Fourth Circuits. He faces Elizabeth Wydra, president of the Constitutional Accountability Center, and Loren Alikhan, the District of Columbia solicitor.

Two federal appeals courts next week will hear claims that Donald Trump is violating the U.S. Constitution’s restrictions on presidents receiving gifts from domestic and foreign sources, provisions that were designed to limit outside influence in the White House.

The U.S. Court of Appeals for the D.C. Circuit on Monday will hear the case Richard Blumenthal v. Trump, where Democrats in June 2017 sued the president. Then on Thursday, the Fourth Circuit, sitting en banc in Richmond, Virginia, will hear a case brought by the attorneys general for the District of Columbia and Maryland.

Both appeals courts plan to provide a real-time audio stream—routine for the D.C. Circuit since 2018 but still a rarity in the Fourth Circuit. Either or both of the cases, part of a wave of litigation confronting the secrecy of Trump’s financial information and alleged conflicts of interest stemming from the president’s business empire, could reach the U.S. Supreme Court in the coming months—but perhaps not be heard this term. And it’s an open question how any ruling against Trump would be enforced.

The D.C. Circuit and Fourth Circuit cases confront constitutional clauses that broadly prohibit any officer of the U.S. from accepting a gift from foreign and domestic sources. The Fourth Circuit in July dismissed the case against Trump, but the full appeals court later voted to rehear the claims. In both cases, Justice Department lawyers have asserted there is no viable claim against Trump.

What follows is a snapshot of the government and private lawyers making their cases either for or against Trump.

>> Hashim Mooppan, a deputy assistant attorney general at the U.S. Justice Department: The former Jones Day partner will argue in both the D.C. Circuit and Fourth Circuit cases on behalf of the Trump administration. Mooppan is a Trump-era leader in the Justice Department’s civil division—he is called on to argue some of the most closely watched cases. In 2017, he unsuccessfully tried to convince the Second Circuit in New York that federal civil rights laws don’t protect gay and lesbian workers from discrimination—that case is now at the U.S. Supreme Court. He argued against the single-director structure of the Consumer Financial Protection Bureau, and in October he urged the D.C. Circuit to reject House Democrats’ bid for documents concerning Trump’s hotel in downtown Washington. Mooppan argued the earlier Fourth Circuit emoluments case for Trump. Mooppan was part of a wave of Jones Day lawyers who joined the Trump administration in early 2017. He first worked at the Trump White House with former Jones Day partner Gregory Katsas, who has since been confirmed as a judge on the D.C. Circuit. Mooppan has worked on the emoluments cases with Martin Totaro, who jumped from the U.S. Securities and Exchange Commission to the DOJ civil staff this summer.

>> Loren AliKhan, solicitor for District of Columbia: AliKhan has served as the District of Columbia’s top appellate lawyer since March 2018, when she was named solicitor under the leadership of D.C. Attorney General Karl Racine. AliKhan had been deputy solicitor since 2013. AliKhan was an O’Melveny & Myers appellate lawyer prior to her move to the District of Columbia attorney general’s office. She argued the earlier emoluments case in the Fourth Circuit, and will now get a second chance on Thursday to make her case. AliKhan spoke recently about the dearth of women arguing at the U.S. Supreme Court. “Clients aren’t, especially in the big corporations, that keen to take a chance on a more junior advocate,” AliKhan said. “I think especially they are not as keen to take a chance on a more junior female advocate.” She noted that many “repeat players” at the court have gone on to other jobs—Cornelia Pillard, Patricia Millett and Pamela Harris are all now federal appeals judges, AliKhan pointed out. Harris, formerly an O’Melveny partner and Georgetown University Law Center professor, will make an appearance Thursday—she now sits on the Fourth Circuit. AliKhan has worked on the emoluments case with a team from the Maryland attorney general’s office, and also with the with private counsel Gupta Wessler PLLC and Cohen Milstein Sellers & Toll.

>> Elizabeth Wydra, president of the Constitutional Accountability Center: Wydra will argue on behalf of Democrats in the D.C. Circuit. Wydra was previously at Quinn Emanuel Urquhart & Sullivan, where she worked in the Supreme Court and appellate practice chaired by name partner Kathleen Sullivan. Wydra speaks often at progressive and conservative legal groups, and she often files friend-of-the-court briefs in the U.S. Supreme Court. She appeared at a Federalist Society panel in November with Judge Amul Thapar of the U.S. Court of Appeals for the Sixth Circuit, where she discussed some of the political aspects behind originalism. “[F]rankly, the idea that only conservatives are originalists and liberals aren’t is just wrong, and you can look at the Supreme Court to see that,” Wydra said. “You can disagree with the way that folks on one side or the other apply it, but as we’ve heard from Justices Kagan and Ginsburg, if you’re talking about looking to the text and history of the Constitution, they’re originalists too, and they’ve said that at various points.” Wydra has worked on the emolument case with Brianne Gorod, chief counsel at Constitutional Accountability Center and a former O’Melveny & Myers counsel, and Brian Frazelle, an appellate counsel at the Constitutional Accountability Center.