Under what circumstances is the writ of mandamus normally used? Currently the State of Maryland and the District of Columbia are pursuing a case against the President of the United States regarding alleged violations of the emoluments clause. As described by Justice Department: The Solicitor General of the United States has authorized the filing in the U.S. Court of Appeals for the Fourth Circuit of a petition for writ of mandamus against this Court’s orders declining to dismiss the case and to certify an interlocutory appeal, as well as an application for a stay of District Court proceedings pending resolution of the mandamus petition. Is there precedent for this type of use of the writ of mandamus? Under what circumstances is this normally used?
Writs of Mandamus Are A Recognized Procedural Tool In the Federal Courts Is there precedent for this type of use of the writ of mandamus? Yes. It needs to be understood against the background rule of civil procedure that a party can only appeal a final judgment of a trial court, and cannot appeal an order entered by a trial court prior to entry of a final judgment. For example, the denial of a party's request that a motion to dismiss a case, or a motion for summary judgment be entered, which forces the claim at issue in the motion to be resolved following an evidentiary hearing or trial, rather than summarily earlier on in the case, is not an appealable order (subject like almost everything in the law to a few narrow exceptions, e.g., for a denial of a law enforcement officer's claim of qualified immunity in a civil rights case, and for preliminary injunctions). At the federal level, writs of mandamus have not been abolished as a means of securing an interlocutory appeal of a lower court ruling, but some alternative means of obtaining interlocutory appeals have been authorized by statute, and a writ of mandamus is only available where alternative remedies are not available. The route of last resort is a writ of mandamus. But, there are also other exceptions, a couple of more common of which including the following ones. Sometimes it isn't clear if a judgment is final or not, or a judgment is final against one party or on one issue, and not against other parties in the case or on other issues, and there is no good reason to delay an appeal against the one party against whom a final judgment has been entered. In those cases, a trial court, may, but is not required to certify the partial judgment as final, allowing an immediate appeal. Fed. R. Civ. P. 54(b). There is also another kind of discretionary appeal by statute in federal court and this is what the government is claiming that the lower courts abused their discretion in not providing. This statute is 28 U.S.C. § 1291(b), which provides that: When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves 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, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. Writs of mandamus in the federal courts are another means by which interlocutory relief can be granted (in addition to compelling public officials to take non-discretionary actions) which are authorized by the All Writs Act which is &quot;28 U.S.C. § 1651, which authorizes the United States federal courts to &quot;issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.&quot; Many states have replaced the writ of mandamus with statutory rights to interlocutory appeals or with specific civil rules that replace the previous common law writs. For example, in Colorado, writs of mandamus directed at public officials other than judges and at judges in trial courts of limited jurisdiction have been superseded by Colorado Rule of Civil Procedure 106 and writs of mandamus directed at general jurisdiction trial courts have be superseded by Colorado Appellate Rule 21. Writs of mandamus in the U.S. Supreme Court are also governed by Federal Rule of Civil Procedure 21, but the federal rule retains the historic &quot;writ of mandamus&quot; terminology (in part to make it easier to search old precedents that used the old common law writ terminology and in part to keep the rule clearly within the authority granted by the All Writs Act). The use in question has been around pretty much as long as the federal court system, although it isn't terribly common, and writs of mandamus, when filed, are frequently denied. Historically, a writ of mandamus was treated as a lawsuit in the higher court by the aggrieved party seeking to appeal the lower court judge's decision prior to a final order against the judge in the judge's official capacity. Most jurisdictions no longer structure interlocutory appeals in this way because it is an irritation for a judge who is applying for a loan to have lots of lawsuits against him or her in the public record that aren't really lawsuits against the judge personally, even though they superficially look like it when one does a simple party search of court records. Writs Of Mandamus Are Used When Other Options Provide Inadequate Relief Under what circumstances is this normally used? At common law, before there was statutory authorization for interlocutory appeals (i.e. appeals before a final judgment on the merits is entered in a case, usually following a trial or ruling on a summary judgment motion that resolved all pending claims), a writ of mandamus was the only means by which appellate relief could be obtained before trial. Typically, a writ of mandamus was sought in circumstances where a failure to address the order appealed would make it an uncorrectable fait accompli once a trial was conducted (e.g. an appeal of an order requiring someone to disclose allegedly attorney-client privileged information), the negative consequences of the order are material, and there is no statutory alternative means by which to obtain interlocutory relief. More precisely: interlocutory appeals are permissible in a small category of cases where the decision being sought for appellate review: – (1) Conclusively determined the disputed question; – (2) Resolved an important questions separate from the merits of the action; and – (3) The decision is effectively unreviewable on appeal from the final judgment in the underlying action. See, e.g., Hallock v. Bonner, 387 F.3d 147 (2d Cir. 2004). The decision to grant this relief is discretionary and the court receiving a writ of mandamus is not required to resolve the issue presented to it on the merits. Application To The Case Identified In The Question In the case of &quot;a petition for writ of mandamus against this Court’s orders declining to dismiss the case and to certify an interlocutory appeal,&quot; the main procedural issue is whether the statutory remedy provided in cases where an interlocutory appeal can be certified to the 4th Circuit Court of Appeals was intended to abolish the common law writ of mandamus (which is not something that is constitutional in nature even though it is so ancient), in this situation by providing an alternative remedy. The government is probably arguing in this writ application that emoluments clause litigation is prohibited by Presidential immunity, and that even though they don't fall within the letter of the law authorizing an interlocutory appeal as a matter of right, that the litigation itself over the emoluments clause litigation against the President poses such a distraction to the conduct of the Presidency, that the purpose of Presidential immunity would be undermined by allowing the trial court lawsuit to go forward, even though a ruling against the President in this case could be appealed when and if a judgment is entered against the President on the claims presented in the case (logical quite similar to the reason that interlocutory appeals of denials of claims of qualified immunity in civil rights lawsuits are allowed). The government is probably also arguing that enforcement of the emoluments clause should be considered a &quot;political question&quot; that can only be enforced by Congress, for example, via impeachment, in which case the trial court would not have subject matter jurisdiction to consider the case. And, a lack of subject matter jurisdiction is a matter which is often a grounds for granting a writ of mandamus. The argument against granting a writ of mandamus is that the appellate courts shouldn't micromanage the pre-trial process in trial courts, that most of the distraction can be handled by lawyers for the President without interfering much with the President's day to day conduct of his office, and that the distractions caused by a civil lawsuit arising out of the business interests of someone who is the President are a risk that the President assumed when he took office without selling his business assets or putting them in a blind trust. Previous cases in the Nixon and Clinton administrations established that Presidential immunity does not provide a blanket prohibition upon lawsuits against a President while the President is in office. The case involving Clinton, Clinton v. Jones, 520 U.S. 681 (1997), established that a subpoena for a deposition in a private lawsuit unrelated to the President's duties or conduct in office in any way could go forward while the President was is in office, and his testimony in that deposition would later become the lynch pin of an unsuccessful effort to remove him from office via impeachment. The case involving Nixon, United States v. Nixon, 418 U.S. 683 (1974), which upheld the enforceability of a Watergate related subpoena is more clearly on point as it held that a President could be compelled to comply with a subpoena in a case that arguably had some relationship to his Presidential role and duties, although it was not cut and dried and Nixon's resignation made this largely a moot point. Both of these cases are controversial in conservative legal circles, and Brett Kavanaugh, recently confirmed as a justice of the U.S. Supreme Court, has gone on record stating that Presidential immunity has been too narrowly construed by the courts and that these U.S. Supreme Court precedents should be overturned or modified by the U.S. Supreme Court. The lawyers bringing the writ of mandamus in this action know that President Trump is unlikely to prevail in his arguments to dismiss or stay emoluments clause litigation (which is why he lost on that argument in the trial court and why the 4th Circuit refused to consider his interlocutory appeal) under the existing U.S. Supreme Court precedents described above, but might prevail and secure a narrowing of these precedents in the U.S. Supreme Court with its new solidly conservative majority. Even if the U.S. Supreme Court did deny the writ of mandamus, this wouldn't preclude the U.S. Supreme Court from later holding on a better developed trial court record, if and when the trial court ruled on the merits in the case, that Presidential immunity barred the lawsuit, contrary to the ruling of the trial court on this legal issue, if the 4th Circuit upheld a trial court's judgment against President Trump. Doing so would allow the U.S. Supreme Court to postpone having to resolve a politically sensitive issue of constitutional law that might never end up reaching them at all depending upon how the case plays out. And, this is what the U.S. Supreme Court usually does when it can. So, the U.S. Supreme Court needs to really feel strongly that interlocutory relief is the only adequate remedy in order to rule in the President's favor on this writ of mandamus petition.
While I am not a lawyer, this is fairly well settled in US constitutional theory. The framers thought of impeachment is something very much like a legal process, which is shown, among other things by the procedure in the Senate being referred to in the Constitution as a &quot;trial&quot; and a vote to remove being described as a &quot;conviction&quot;. The use of the term &quot;High Crimes and Misdemeanors&quot; also suggests a legal process. In The Federalist, Hamilton took the view that the trial was to determine &quot;guilt or innocence&quot;, but would be inherently political.[A] But there is no supervising authority, and the Congress (and each house of it) is a very political body. Procedures for drafting and passing Articles of impeachment in the House are whatever the House chooses them to be on each particular occasion. Procedures and rules of evidence in a Senate trail are whatever the Senate chooses them to be on each occasion. There is no standard format which is binding, or even customary. Thus in practice an impeachment will be a political issue whenever the Congress treats it as one. Early in the history of the US there was an opinion among some legislators and politicians that an impeachment was simply a statement that &quot;we want your offices to give them to better men&quot;[B], suggesting that it be treated much like a vote of no-confidence in the UK parliament. In the impeachment of Justice Chase the Senate did not vote to convict, and this was held to establish the principle that actual wrong-doing, not mere political dispute, must be the basis of any impeachment. In the impeachments of Federal Judges, the procedure has been essentially legal, with accusations of actual crime, such as bribery or malfeasance in office, being the basis of impeachments, and Senate trials being quite similar to criminal trials. This was perhaps particularly apparent in the impeachment and trial of Justice Chase. The articles of impeachment drafted in the case of president Nixon also looked very much like an indictment for ordinary crime. The trial never took place, but discussions of its format at the tiem suggested that it would have also been somewhat like a criminal trial. But the impeachments and trials of Presidents Clinton and Trump had a much more political aspect to them. While accusations were made of actions alleged to be not just politically unacceptable but unlawful, the Senate essentially inquired not into the truth of the accusations, but into whether they were improprieties deserving of removal at all. This was essentially a political, not a legal decision, and was made in a quite partisan way in each case. The US Supreme Court has held that it has no authority to approve or disapprove the outcome of any impeachment proceeding (not does any other federal court). An &quot;impeachable offense&quot; is whatever the House choose to list in an Article of Impeachment, and a &quot;removable offense&quot; is whatever the Senate chooses to vote for removal on the basis of. Thus those preparing proposed articles or advocating them in a Senate trial will be as legalistic or political as they think the occasion demands. Notes and sources The Federalist on Impeachment [A] Essay number 65 of The Federalist (by Alexander Hamilton) begins: THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate. A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt. ... What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It seems that Hamilton's ideal was that of a legal proceeding, a court, which was to determine &quot;guilt or innocence&quot;. But he was well aware of th importance that political factors (and factions) might assume in any impeachment trial, and regarded this as inherent in the nature of such a proceeding. Most constitutional scholars seem to have followed this line of thought. Giles [B] Senator William Branch Giles, leader of the Senate forces favorable to the Administration of President Jefferson, is reported by John Quincy Adams to have said: Impeachment was not a criminal prosecution ... and a removal by impeachment was nothing more than a declaration by Congress to this effect: &quot;You hold dangerous opinions, and if you are suffered to carry them into effect, you will work the destruction of the Union. We want your offices for the purposes of giving them to men who will fill them better.&quot; quoted from Memoirs of John Quincy Adams (J.P.Ipperncot &amp; Co; 1874) Volume 1, page 322; quoted in Grand Inquests By Chief Justice William H. Rehnquist (William Morrow &amp; Co; 1993) page 27 (Chapter 1) The Wikipedia article on Giles (linked above) says: Giles strongly advocated the removal of Justice Samuel Chase after his impeachment, urging the Senate to consider it as a political decision (as to whether the people of the United States should have confidence in Chase) rather than as a trial.
I see lots of possible issues here, including: Will the Apprendi decision be given retroactive effect? Were the constitutional issues raised at the time of trial, and if not will a court permit them to be raised later? Will a court agree with the law review publication? Will the facts in your case be sufficiently similar to the cited case? Beyond those, in a section 1983 suit many public employees have qualified immunity unless the legal point was already "well established" when the violation occurred. To pursue this you will need to work with a lawyer skilled in this area. No one on this forum can possibly given you a reliable answer as to whether you have a reasonable case.
There is a legal doctrine of executive privilege, where the executive branch can resist subpoenas, but that privilege is limited (US v. Nixon). Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. SCOTUS pointed to the kinds of cases where such privilege would be valid Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution. But otherwise, when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice Decades later, Harriet Miers claimed executive immunity (as White House counsel) to a subpoena to testify before the Committee on the Judiciary, and the district court ruled rebuffed that claim There are powerful reasons supporting the rejection of absolute immunity as asserted by the Executive here. If the Court held otherwise, the presumptive presidential privilege could be transformed into an absolute privilege and Congress's legitimate interest in inquiry could be easily thwarted. if the Executive's absolute immunity argument were to prevail, Congress could be left with no recourse to obtain information that is plainly not subject to any colorable claim of executive privilege. However, executive privilege has been invoked dozens of times since Nixon – there are no other SCOTUS decisions. We should set aside current political posturing. POTUS might claim executive privilege, and then the question is whether the courts would order Banon to testify. We don't know the basis for such privilege, but we can assume that it would involve national security issues (thus might be within the penumbra of the Nixon ruling). Traditionally, executive privilege has involved the person who is president, not the person who ended up becoming president, so it would be extremely surprising if the courts upheld immunity in a pre-election matter.
In order to challenge a search at trial via an evidence suppression motion, the particular defendant has to have Fourth Amendment &quot;standing&quot;1 with respect to that search: Rakas v. Illinois, 439 U.S. 128 (1978). From the syllabus: Fourth Amendment rights are personal rights which ... may not be vicariously asserted ... a person aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. Subject to the various exemptions to the exclusionary rule discussed at this question, the evidence in your scenario would not be admissible against Bob, but would be admissible against Rob. This does not necessarily mean that Bob would go free. As noted in that other question, if police/prosecution have other evidence, independently gathered, or sufficiently attenuated from the illegal search, they may still have a case against Bob. This also doesn't mean that an unconstitutional search of a person who will not even be prosecuted is without a remedy. See this answer for a discussion of civil remedies available for a person who has suffered an unconstitutional search. 1. The Court has distanced itself from the term &quot;standing&quot; in this context, so I am using it somewhat colloquially as it is still in common usage in this sense. The Court instead just conceives of whether the defendent even experienced a Fourth Amendment search; the notion of standing is either redundant with or subsumed by such analysis.
Can the prosecutor and/or the judge be sued for dereliction of duty, and for non-uniform application of the law? No. Judges and prosecutors have absolute immunity from civil liability for their actions in the course of their duties in connection with the court process. Prosecutors have effectively absolute discretion in their charging decisions and in their decisions to reduce the charges sought against a defendant (prior to jeopardy attaching when a jury is sworn in). Can the outcome of a bench trial be appealed on grounds that the judge did not inform the defendant of his rights Yes. or that his rights were taken away by unwarranted modification of the charges? No. Incidentally, there is no federal constitutional right to a jury trial in a case where six months or less of incarceration is sought as a penalty, and there is no federal constitutional right to counsel unless incarceration is a possible penalty. The Utah State Constitution distinguishes between criminal matters and non-criminal matters in several respects mostly found in the state's bill of Rights (Article I of the State Constitution) in Sections 8, 10, 12, 13, and 19. But, it is fundamentally the right of the state through its prosecutors to decide what charges to press against someone, and they are well within their rights to change their minds. Often, this will be in your favor because reducing an offense to a civil infraction rather than a misdemeanor will have far fewer collateral consequences related to having a criminal record.
I am assuming you are not the councilor. Civil matter you have no standing. The councilor does. Maybe the hotel bar does. I can’t think of anyone else who does. Criminal matter If a crime was committed in DC, the DC prosecutor is under no obligation to prosecute it. As a political matter, if you were a citizen of DC you could complain and try to get the prosecutor voted out next election. Political matter As a citizen of your city, it is a political matter: You call your councilman* or any city councilman really and ask them to begin impeachment or whatever similar action you have there. Then next election to try to get the mayor voted out. If you are unsatisfied with the council, try to get them voted out also. The cost of investigation is a cost of running a government. Someone could have chosen not to spend seven grand investigating a hundred bucks, but they did it. *Note this is called petitioning for redress which is the right that the current SCOTUS nominee could not recall off the top of her head.
"Seditious libel" has happened before, but not in the US. This comes up in NY Times v. Sullivan, which notes that For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. This Volokh article gives various citations showing that a government entity cannot sue for libel.