[00:00:01] Speaker 04: Case number 18-7185, K&D LLC, trading as court appellant versus Trump Old Post Office LLC at L. Mr. Morrison for the appellant, Mr. Keneally for the appellate. [00:00:15] Speaker 05: Mr. Morrison. [00:00:16] Speaker 05: May it please the court. [00:00:18] Speaker 05: The claim in this case is based on the unfair competition law of the District of Columbia as applied to elected officials. [00:00:26] Speaker 05: The specific legal basis for this claim is that when an elected official runs a business in the District of Columbia and obtains unfair competition [00:00:38] Speaker 05: advantages not because of the quality of the product or the prices that the business charges but because of the perception by those who patronize the business [00:00:50] Speaker 05: that doing so will curry favor with the owner of the business, who is a government official, whom they believe will provide benefits to them that are the governments to give away and not to the individual. [00:01:05] Speaker 04: Mr. Morrison, what's your best case for your unfair competition claim? [00:01:09] Speaker 04: The other side has lots of cases. [00:01:11] Speaker 04: I couldn't find any for years. [00:01:13] Speaker 05: There is no case, which we are aware, that involves an elected official who has owned a business of this magnitude or any business. [00:01:21] Speaker 04: Why isn't that a pretty serious problem for your claim? [00:01:25] Speaker 05: Well, Your Honor, we brought this case in the Superior Court of the District of Columbia, where we believe that the Superior Court, which has not seen an unfair competition case since 1982, and the last time it saw a case, it dealt with the unfair competition points in a footnote. [00:01:42] Speaker 04: We believe in accordance with the... There is law in the District of Columbia about unfair competition, right? [00:01:48] Speaker 04: Interference and all these sorts of things, none of which are part of your case. [00:01:54] Speaker 04: Yes, Your Honor. [00:01:55] Speaker 04: None of which are part of your case. [00:01:56] Speaker 04: So you're asking us to extend the law. [00:02:01] Speaker 04: You don't have any case under DC law that resolves this for us. [00:02:05] Speaker 04: You're asking us to extend the law. [00:02:07] Speaker 05: Your Honor, we did not ask the federal courts to extend the law. [00:02:12] Speaker 05: But we asked that the Superior Court. [00:02:15] Speaker 05: The case was removed from the court where it belonged, in our view, where the common law of the District of Columbia could be properly developed. [00:02:24] Speaker 05: And we asked that it be filed. [00:02:26] Speaker 05: We heard there. [00:02:27] Speaker 05: The case was removed. [00:02:28] Speaker 05: We objected to removal. [00:02:30] Speaker 05: And we asked for remand. [00:02:32] Speaker 05: The remand was denied. [00:02:34] Speaker 05: And we are here with our principal argument that we are not asking for this court to decide the case. [00:02:39] Speaker 05: And even if this court has jurisdiction, we also believe that it would be appropriate to certify the question to the DC Court of Appeals. [00:02:45] Speaker 05: If the DC Court of Appeals believes that we do not have a claim, then we are out of claim. [00:02:49] Speaker 05: And this is precisely the kind of question that ought not to be decided by the federal courts. [00:02:54] Speaker 02: Since we've jumped ahead to the merits away from the question of forum, it would seem to me that to prevail, you would have to indicate, you would have to look at the four cases finding unfair competition under the district law. [00:03:13] Speaker 02: develop from them some general proposition within which your case did it. [00:03:22] Speaker 02: And I'm not sure that you've done that. [00:03:25] Speaker 05: Well, I think that the question of under the district law, there is no case that the district court has. [00:03:33] Speaker 05: All of the cases that have been cited are cases from the federal court here in the District Court here in the District of Columbia. [00:03:41] Speaker 05: The last case was 1982. [00:03:43] Speaker 05: And in the footnote that described what might constitute unfair competition among other claims, [00:03:49] Speaker 05: The court said the following may include. [00:03:53] Speaker 05: Citing Proser on torts, which said exactly the same thing, the following may include. [00:03:58] Speaker 05: And the real question is whether the kind of competition is the kind that our robust economy says ought to go forward. [00:04:05] Speaker 05: Better products, better service, whatever else it is. [00:04:08] Speaker 05: None of them. [00:04:10] Speaker 02: But you don't point us to any generality in these opinions that [00:04:19] Speaker 02: sustains that broad view. [00:04:21] Speaker 02: They don't say this is an unfair competition here because this is simply an example of the following principle. [00:04:32] Speaker 05: Well, most of them are examples of what the court found was fair competition. [00:04:37] Speaker 05: This is the opposite. [00:04:38] Speaker 05: It's unfair competition because the owner of the property is taking advantage of his position as a government official. [00:04:45] Speaker 05: And his staff and friends and associates [00:04:49] Speaker 05: are impliedly, in some cases directly, promoting the use of the property as a means of gaining access to the government official. [00:04:57] Speaker 05: Any definition of fair does not include, in our view, that kind of activity. [00:05:02] Speaker 05: And the fact that no one has done this before, Your Honor, doesn't mean that the District of Columbia can't. [00:05:07] Speaker 05: They have done something parallel. [00:05:11] Speaker 05: Well, I suppose, Your Honor, it depends on the level of generality at which you define parallel and how parallel it has to be. [00:05:18] Speaker 05: All of the other cases involve, I mean, if you consider, for example, blocking the interest of somebody's business as unfair, at some level of generality, that's unfair. [00:05:31] Speaker 02: What about the Proxmire case? [00:05:33] Speaker 02: Well, of course, in the Proxmire case... [00:05:37] Speaker 05: as what you're asserting. [00:05:39] Speaker 05: Well, nobody in that case asserted that Senator Proxmire had promised anyone any benefits, or Mrs. Proxmire had not promised any benefits from the senator if they patronized her business. [00:05:55] Speaker 02: That would be the parallel to this. [00:05:57] Speaker 02: I thought in connection with the removal issue, you retreated from any suggestion of [00:06:03] Speaker 02: affirmative offers of benefits from patronage of the hotel. [00:06:12] Speaker 05: On the removal issue, what we said was that the evidence we had at the time that the complaint was filed and every one of the allegations of acts in the complaint did not involve acts taken by Mr. Trump after he became president of the United States. [00:06:28] Speaker 05: Most of our activities, and there was no removal question in the Proxmire case because the case was filed in federal court. [00:06:36] Speaker 05: But there was no evidence that Mrs. Proxmire, to analogize what we have here, was indicating that her husband would give anyone any benefits by patronizing her. [00:06:47] Speaker 05: And that would be the analogy to this case. [00:06:50] Speaker 01: Is that the analogy? [00:06:51] Speaker 01: Because as I read your brief, the brief at 10, your legal theory is that when elected officials derive economic benefits, [00:07:01] Speaker 01: from a business in the District of Columbia while in office, doing so is seen as creating an unfair advantage over competitors. [00:07:12] Speaker 01: And likewise, in your reply brief, you say, the principle of unfair competition under district law is that it is unfair to competitors for elected officials to own business in the district because they can use their political clout. [00:07:29] Speaker 01: Is your principle that it is the mere fact of ownership of a business by an elected official that it's unfair competition? [00:07:41] Speaker 01: That's the way you put it in the brief. [00:07:44] Speaker 01: Let me quote you from paragraph 18 of our complaint. [00:07:48] Speaker 01: I'm just asking you. [00:07:50] Speaker 01: This is what you say in the brief. [00:07:51] Speaker 01: Are you stepping back from that? [00:07:54] Speaker 01: Is your position only if there are acts of implied benefit, or is the idea that a high government official who owns a business while [00:08:10] Speaker 01: acting as an official is sufficient to be unfair competition. [00:08:14] Speaker 05: Your Honor, we have pled in this case that there are affirmative acts taken on behalf of the business. [00:08:19] Speaker 05: That's paragraph 18 of our complaint. [00:08:21] Speaker 01: That may go to continuation or damages, but I'm only interested in the question of what you understand to be the principle of District of Columbia fair competition law that you are asking us to uphold. [00:08:34] Speaker 05: Well, the minimum principle would be the first statement that Your Honor made, simply the ownership of the business while elected office. [00:08:42] Speaker 05: We believe that in this case, Your Honor does not have to reach that because we have additional allegations, which is paragraph 18. [00:08:48] Speaker 01: And this is a common law question. [00:08:51] Speaker 05: It is, Your Honor. [00:08:53] Speaker 01: And I take it your argument, you said in your brief that there's no case remotely like this. [00:09:00] Speaker 01: Correct, Your Honor. [00:09:01] Speaker 01: Anywhere in the country. [00:09:02] Speaker 01: Is that right? [00:09:05] Speaker 05: I don't say that we said remotely and anywhere in the country. [00:09:08] Speaker 05: It depends on how much remote, Your Honor. [00:09:10] Speaker 01: Is there any case that adopts this principle as a principle of the common law? [00:09:16] Speaker 05: No, Your Honor, there's no case that adopts the opposite principle. [00:09:20] Speaker 01: I understand. [00:09:20] Speaker 01: But that's not the question I'm asking. [00:09:23] Speaker 01: I understand the question. [00:09:25] Speaker 01: I answered both. [00:09:26] Speaker 01: You're asking us to do what a common law judge would do in the District of Columbia. [00:09:31] Speaker 01: Think about the evolution of the common law. [00:09:34] Speaker 01: And I'm asking you, what is the evidence that the common law has evolved toward the principle that you're asking us to uphold? [00:09:45] Speaker 05: Your Honor, I could point to no specific case. [00:09:48] Speaker 05: I could point to the general statements in the American Law Institute's first restatement of torts. [00:09:53] Speaker 01: But those are about... [00:09:55] Speaker 01: common law evolving. [00:09:56] Speaker 01: They aren't about where it's evolving to. [00:09:59] Speaker 05: Yes, Your Honor. [00:10:01] Speaker 05: And if I may say this again, this is specifically the reason that we filed the case in the District of Columbia Superior Court, that the common law should develop in the courts of which it is sitting in the jurisdiction. [00:10:14] Speaker 01: And what even in that court you would be asked [00:10:18] Speaker 01: What is the indication that the common law has evolved in this? [00:10:22] Speaker 01: Why are there no other cases on this that are like this? [00:10:26] Speaker 01: Why is there no other case that has taken an elected government official who's operating a business and claimed a right of fair competition, common law right of fair competition against them? [00:10:43] Speaker 05: There are no other cases because, Your Honor, I believe what the defendant did here is unique. [00:10:48] Speaker 05: All right. [00:10:48] Speaker 05: Well, let me ask you about that. [00:10:49] Speaker 01: So 20% of the Maryland General Assembly are active lawyers. [00:10:56] Speaker 01: They are competing with all the other lawyers in Maryland. [00:10:59] Speaker 01: 37% of the Virginia General Assembly, exactly the same. [00:11:03] Speaker 01: The governor of Maryland has a real estate business, which competes with other real estate businesses. [00:11:10] Speaker 01: The governor of West Virginia owns the Greenbrier Hotel, a luxury hotel. [00:11:16] Speaker 01: Michael Bloomberg, when he was the mayor of New York, had a major financial business. [00:11:21] Speaker 01: And John Hickenlooper, when he was the mayor of Denver, had some kind of craft brewery and some number of restaurants, I think seven. [00:11:32] Speaker 01: This suggests, and in fact, overall, many, many state legislatures across the country are also active lawyers because they're only in session part time. [00:11:43] Speaker 01: Given all of that, why is there not a single, if the common law is evolving in the direction you say, why is there not a single case, as far as we can tell in history, that has evolved in that direction? [00:12:00] Speaker 05: Many clients. [00:12:02] Speaker 05: are not anxious to sue politicians who have substantial interests and have substantial ability to adversely affect their operations as well. [00:12:12] Speaker 05: This is a competitor standing case. [00:12:15] Speaker 05: And it is brought by an organization that's willing to step forward. [00:12:21] Speaker 05: I think that most people would be unwilling to step forward in this situation. [00:12:26] Speaker 05: But most people don't also have what we've alleged in this case is not simply that they are in business, lawyers are in business, but that the business itself is touting, paragraph 18, [00:12:38] Speaker 05: the availability of the elected official to do favors for those who patronize the business. [00:12:44] Speaker 05: That is a distinguishing feature. [00:12:47] Speaker 05: And I am not aware of other situations where that has happened. [00:12:50] Speaker 05: Perhaps it has happened. [00:12:51] Speaker 05: Perhaps other officials do it in a different way. [00:12:54] Speaker 05: But that, I think, would explain it. [00:12:56] Speaker 05: That's why when your honor asked me what a proposition is, the first proposition is elected officials, and then we would say when they are specifically touting the business as a means of access to the elected official with the business itself and others as well. [00:13:11] Speaker 05: And so that is the basis on which we say this is different from other cases. [00:13:16] Speaker 01: I understand, but it still requires us to expand [00:13:24] Speaker 01: change, evolve what we understand and what so far exists in D.C. [00:13:29] Speaker 01: law. [00:13:30] Speaker 01: Is that right? [00:13:31] Speaker 05: Well, Your Honor can only do that if you conclude that our motion to remand was properly denied. [00:13:36] Speaker 01: Yeah, no, I understand. [00:13:36] Speaker 05: Because there is no subject matter jurisdiction. [00:13:39] Speaker 01: No, I understand. [00:13:39] Speaker 01: We have two different separate issues. [00:13:41] Speaker 01: I understand that. [00:13:42] Speaker 01: The one that started on the second one first, we should finish the second one. [00:13:45] Speaker 01: So here, my problem with this is we have [00:13:48] Speaker 01: Substantial number of cases that describe our role in an eerie situation, which is what this is. [00:13:56] Speaker 01: Federal court trying to figure out what the common law of the District of Columbia is. [00:14:01] Speaker 01: In Tiddler, which is a case from 1988, we said, we take the law of the appropriate jurisdiction as we find it and we leave it undisturbed. [00:14:13] Speaker 01: as the First Circuit correctly expressed this fundamental principle of full diversity jurisdiction, quote, absent some authoritative signal from the legislature or the state courts, we see no basis for even considering the pros and cons of innovative theories. [00:14:31] Speaker 01: We must apply the law of the forum as we presently infer it to be, not as it might come to be. [00:14:41] Speaker 01: And this was repeated again in 2007 in the Pitt case where we cite Tiddler for the proposition in considering common law claims. [00:14:51] Speaker 01: Federal courts must apply existing law. [00:14:54] Speaker 01: We have no power to alter or expand the scope of the D.C. [00:14:58] Speaker 01: tort law, citing Tiddler for the proposition that, quote, we are not free to graft onto those state rules exceptions or modifications. [00:15:09] Speaker 01: which may commend themselves to the federal court, but which have not yet commended themselves to the state in which the federal court sits. [00:15:16] Speaker 01: So doesn't that really, if you lose your, what is going to be your second? [00:15:21] Speaker 01: My jurisdictional argument. [00:15:22] Speaker 01: Your jurisdictional argument. [00:15:24] Speaker 01: Yes. [00:15:25] Speaker 01: Aren't you really only left with a plea that we send this case for certification? [00:15:31] Speaker 01: No, Your Honor. [00:15:32] Speaker 01: Well, in light of this, in light of your agreement that the common law, not only in the district, [00:15:37] Speaker 01: but of all the court, of all courts, has not yet evolved to cover this principle. [00:15:44] Speaker 01: And given our principle that we can't evolve the common law, how can we decide in your favor the common law question? [00:15:53] Speaker 01: Your Honor, you can do what we asked you to do. [00:15:55] Speaker 01: We should certify the question. [00:15:57] Speaker 01: That's what I said. [00:15:58] Speaker 01: Other than certifying the question. [00:15:59] Speaker 01: Well, I'm sorry, Your Honor. [00:16:00] Speaker 05: That's a pretty big other than. [00:16:02] Speaker 01: No, it's not. [00:16:02] Speaker 01: Because 99% of your brief is an argument that you should win on the merits. [00:16:08] Speaker 01: You have a small part of your brief, and then in the reply brief, and I'm not saying you missed anything. [00:16:12] Speaker 01: Of course you didn't. [00:16:13] Speaker 01: You made a request for certification. [00:16:15] Speaker 01: But isn't really that all you have on the merits at this point? [00:16:21] Speaker 05: Well, I recognize the reluctance of federal courts to extend common law doctrine. [00:16:28] Speaker 01: It's not just reluctance. [00:16:29] Speaker 01: This is two precedents of our court that we have to follow. [00:16:32] Speaker 05: Yes, yes. [00:16:33] Speaker 05: Destruction. [00:16:34] Speaker 05: And with good reason. [00:16:36] Speaker 05: But there's also a line of cases in the Supreme Court which we didn't think necessary to decide. [00:16:42] Speaker 05: which makes it clear that when these questions are left open and when the states have a procedure, as they do here, for certification of these state law questions to the highest court of the state, and it can be done and resolve the question without the federal court involving itself in the business of determining whether the law has changed or evolved, it should be done. [00:17:04] Speaker 05: And that's what we asked you to do here. [00:17:05] Speaker 05: We didn't think it required a lot of explanation. [00:17:07] Speaker 01: Well, because we have case law and when we certify. [00:17:10] Speaker 01: And normally, we have some reason to believe that the state law may be evolving in that direction. [00:17:17] Speaker 01: And we don't have that here either. [00:17:19] Speaker 05: Well, the state has never addressed, the District of Columbia courts have never addressed anything like this. [00:17:26] Speaker 05: It has been 37-plus years since they've even talked about, and even then only in a footnote, about unfair competition, where they said it may include, and for this court, [00:17:35] Speaker 05: to, in my view, unnecessarily reach this question when there's an appropriate recognized means of allowing the District of Columbia Court to do what we asked it, we hoped we would do in the first instance, determine the law, we believe that that's the appropriate course. [00:17:52] Speaker 01: I think now we should do the jurisdiction question. [00:17:57] Speaker 05: There are two bases on which the defendants removed this case to the federal court. [00:18:03] Speaker 05: The first basis was that defendant Donald Trump, who was sued in his personal capacity, could remove it as a federal officer. [00:18:15] Speaker 05: No question he is a federal officer. [00:18:17] Speaker 05: The question is whether it is in the language of 1442A1. [00:18:21] Speaker 05: He is removing it in a cause which is for or relating to any act under color of his office. [00:18:31] Speaker 05: And we believe that he has not. [00:18:34] Speaker 02: Does ACT include omissions? [00:18:36] Speaker 02: I'm sorry. [00:18:37] Speaker 02: Does ACT include omissions? [00:18:39] Speaker 02: I mean, it characteristically does, I think. [00:18:41] Speaker 02: Yes, yes, yes. [00:18:43] Speaker 05: And our first claim is that he should have divested himself of this activity, the business, before he became president. [00:18:53] Speaker 05: At that time, if he had done so before that, there would be no act while he was the president of which to be. [00:19:00] Speaker 02: For relief, you asked him to be ordered to divest it. [00:19:04] Speaker 02: So it's an ongoing thing. [00:19:05] Speaker 02: It's not something that disappeared on January 20. [00:19:10] Speaker 05: But the wrong was committed. [00:19:11] Speaker 05: The act of which he stands. [00:19:16] Speaker 05: let you have done something improper was the failure to divest before then. [00:19:21] Speaker 04: But Mr. Morrison, your whole theory is based, the tortious actor is based on the fact that he's the President of the United States. [00:19:30] Speaker 04: If he weren't the President of the United States, you wouldn't have a claim. [00:19:32] Speaker 04: Why isn't that squarely within the [00:19:34] Speaker 04: The federal officer removed? [00:19:36] Speaker 05: There are two answers to that question. [00:19:38] Speaker 05: First is, it's not just because he's the president. [00:19:40] Speaker 05: He's an elected officer. [00:19:43] Speaker 05: And we would apply this to the mayor of the District of Columbia, any member of Congress as well, among other reasons, because the lease says so. [00:19:50] Speaker 05: But the second reason is, Your Honor, is even if we treat these acts as continuing acts going on in his administration, those are in his private capacity. [00:20:02] Speaker 05: They are not in his personal capacity. [00:20:05] Speaker 04: And the Supreme Court in the Fitzgerald case made it clear... You don't have a claim if he's not President of the United States, or a federal officer. [00:20:12] Speaker 04: Your claim is based entirely on that, right? [00:20:15] Speaker 05: Yes. [00:20:16] Speaker 04: And so why isn't that squarely within the federal officer... Because the court has said that... [00:20:22] Speaker 05: That provision is designed not to deal with the question of whether the officer has a status of a federal officer, but whether there is a particular act that... Your theory, your tort, is based on him being a federal officer. [00:20:37] Speaker 04: Your tort is based on his status. [00:20:41] Speaker 05: I don't believe that's correct, Your Honor. [00:20:42] Speaker 05: I believe that cases like Johnson and Acker dealt with the question of whether the federal, the court, in that case the state courts before removal took place, would be in the process of ordering the president or the federal officer to do something that contradicts that person's federal office job. [00:21:01] Speaker 05: So in the case of Johnson, they said, the state of Maryland said... I don't believe those cases were based on a [00:21:10] Speaker 04: theory of tort that required the defendant to be a federal officer. [00:21:17] Speaker 04: They happened to be a federal officer. [00:21:20] Speaker 04: Your whole case is based on an action in being a federal officer. [00:21:26] Speaker 05: I believe the court has been quite clear that that's not a status. [00:21:29] Speaker 05: The status as federal officer is not sufficient. [00:21:33] Speaker 05: And in those cases, the question was whether... Unless your claim is based on the fact that he's a federal officer. [00:21:38] Speaker 04: That's my only point. [00:21:39] Speaker 04: I don't understand the distinction. [00:21:41] Speaker 05: Well, we claim that he's an elected officer, Your Honor. [00:21:45] Speaker 05: And that, of course, is the gist of the problem. [00:21:48] Speaker 05: But nothing he does with respect to the business has any bearing whatsoever on his federal duties and responsibilities. [00:21:57] Speaker 05: He can continue to do everything he wants with the President of the United States. [00:22:01] Speaker 05: And no court order here would affect that whatsoever. [00:22:05] Speaker 05: Suppose, Your Honor, instead of having the business before he became President, he bought this hotel after he became the President of the United States. [00:22:13] Speaker 05: That would be a clear act within the business, and you could point to that as the torturous act. [00:22:17] Speaker 05: But that act was in his private capacity. [00:22:20] Speaker 05: Indeed, Donald Trump himself, before he took office, made it clear in a press conference and in the white paper that we have in the Joint Appendix at 67-72 that he recognized the need to separate his private activities from his presidential activities, which of course is perfectly consistent with the use of the term outer perimeter in Fitzgerald, where it's [00:22:44] Speaker 05: It's clear that everything the President does while he's in office does not invoke his absolute immunity from liability. [00:22:53] Speaker 05: It's only those things which are within the outer perimeter of the President's responsibility that entitle him to claim any immunity. [00:23:01] Speaker 05: There is no case of which I am- All he needs to show is a non-frivolous argument, right? [00:23:06] Speaker 05: Yes. [00:23:06] Speaker 05: And I don't think he has a non-frivolous argument, colorable is the word in this act, I'm not sure what the difference between them is, but I accept non-frivolous, Your Honor. [00:23:14] Speaker 05: That there is, he has any federal defense to the claim that we've raised under the law of the District of Columbia. [00:23:23] Speaker 05: There's nothing inconsistent with his special acts [00:23:27] Speaker 05: Unlike the postal driver in Johnson or the judge in Acker who, under the understanding that he was doing something illegal and could be theoretically enjoined from being a federal judge, none of that is going to happen here. [00:23:42] Speaker 05: The president can carry out all his official responsibilities. [00:23:45] Speaker 05: He just cannot carry out his other things. [00:23:48] Speaker 05: And let me give you some other examples of status. [00:23:49] Speaker 05: So suppose, Your Honor, that [00:23:52] Speaker 05: New York State has a law, which many states have, that you are entitled to a homestead exemption on your principal residence because you are residing there more than 50% of the time. [00:24:08] Speaker 05: Mr. Trump, if he had that tax break, moved to Washington DC, he could not, because he's president, be able to comply with that at the same time as he complies with being president. [00:24:20] Speaker 05: And therefore, he would lose that neutral rule, which we say is a neutral rule here because it applies to other officials. [00:24:26] Speaker 01: Could the district impose property tax on the White House? [00:24:29] Speaker 05: No, Your Honor, because that's taxing the federal government. [00:24:33] Speaker 05: The operations of the federal government. [00:24:36] Speaker 05: Well, the tax would be imposed on the federal, on, on, it's like McCulloch against Maryland, Your Honor. [00:24:41] Speaker 01: Right. [00:24:41] Speaker 01: So his argument here is that he's being taxed on his behavior because he's the president. [00:24:51] Speaker 01: It may not be a winning argument, but the, the, the, although we haven't asked for damages, that's... No, we have not, Your Honor. [00:25:00] Speaker 01: Well, it's equivalent to what you're asking for because you're asking me to give up the business. [00:25:04] Speaker 05: Yes, Your Honor. [00:25:04] Speaker 01: And you're not asking it based on emoluments clause or any federal claim at all. [00:25:09] Speaker 01: So it's a truly state law effective tax on his ability. [00:25:14] Speaker 04: I thought they were asking to resign from office. [00:25:16] Speaker 04: Wasn't that right? [00:25:16] Speaker 05: No, we simply observed that if he resigned from office, the case would be moved, Your Honor. [00:25:22] Speaker 05: But you do ask for that as one of the alternatives, remedies. [00:25:25] Speaker 05: We don't ask it as a remedy, Your Honor. [00:25:27] Speaker 05: We simply say that the case, until he resigns from office, [00:25:35] Speaker 05: I don't believe why we asked them. [00:25:36] Speaker 05: I'm pretty sure we didn't ask them. [00:25:37] Speaker 05: I hope we didn't ask them. [00:25:41] Speaker 05: Or similarly, Your Honor, suppose that Congress changed the conflict of interest laws. [00:25:46] Speaker 05: It said it applied to all officials that they had to divest themselves of all business interests when they became the president. [00:25:56] Speaker 05: That kind of neutral law would not be offended by the immunity provisions given to the president. [00:26:04] Speaker 05: It would be a neutral law affecting all persons similarly situated. [00:26:08] Speaker 05: And it would not violate the constitution. [00:26:11] Speaker 01: Hold, hold, hold. [00:26:11] Speaker 01: Let's be clear. [00:26:13] Speaker 01: If the District of Columbia passed a statute that said all members of Congress, when they are elected, must resign from their businesses, is that what you just said? [00:26:24] Speaker 05: No, I said Congress, Your Honor. [00:26:26] Speaker 01: No, what about if the District of Columbia did it? [00:26:29] Speaker 05: I believe that would be an interference with the federal, with the carrying on of their federal business in the District of Columbia has no legitimate interest in the conflict of interest of federal officials. [00:26:39] Speaker 05: The legitimate interest of the District of Columbia here is protected. [00:26:42] Speaker 01: Would there be a defense then? [00:26:45] Speaker 01: Is that, so there would be a defense if they raised that issue? [00:26:48] Speaker 01: I hadn't thought about it, but you've just given me a question. [00:26:53] Speaker 01: If they had to divest? [00:26:54] Speaker 01: Yeah, if they said, if the District of Columbia said all federal, all members of Congress have to divest themselves from any business. [00:27:03] Speaker 05: I leave aside the possibility that law would ever be allowed to go into effect in the District of Columbia given our current status, Your Honor, but I would answer the question if a state, if a state. [00:27:12] Speaker 01: What if the state court interpreted its fair competition law as requiring that? [00:27:22] Speaker 05: Your Honor, I believe it would be constitutional, because the immunity set up in the... Would there be a colorable constitutional objection? [00:27:31] Speaker 01: That's really the question. [00:27:33] Speaker 01: It's an interesting hypothetical, which I had not thought of. [00:27:37] Speaker 05: Well, the question is how colorable colorable has to be. [00:27:41] Speaker 01: Well, we just heard it means frivolous. [00:27:44] Speaker 05: The Supreme Court in the Fitzgerald case and in subsequent cases has made it, I think, quite clear that the dividing line is between one's personal affairs and one's business affairs. [00:27:58] Speaker 05: We gave the example of then President Clinton in the White House with his affair with Monica Lewinsky. [00:28:04] Speaker 05: He was president of the United States. [00:28:07] Speaker 05: The acts occurred in the White House. [00:28:10] Speaker 05: And we do not think he had a colorable federal defense to any claim that she might have brought against him. [00:28:17] Speaker 05: And we say that's essentially what we have here is that the president himself recognized the need, as the Supreme Court did in this good answer for Cheryl, to divide the world of presidential immunities between official acts [00:28:33] Speaker 05: And private acts, those official acts could not necessarily be legal, but they are done as official capacity. [00:28:39] Speaker 05: And among other things, there are other means of redress for those. [00:28:42] Speaker 05: There is no other means of redress, because these are in his personal capacity. [00:28:46] Speaker 05: And therefore, they are not subject to this immunity. [00:28:50] Speaker 01: You said in your brief that Appellan agrees that if liability were based on the president swearing in, that would raise at least a colorable immunity question. [00:29:00] Speaker 01: That's at page 31. [00:29:03] Speaker 01: If the president hadn't been sworn in, there would be no liability under your theory, right? [00:29:08] Speaker 01: Well, it wouldn't be an elected officer. [00:29:11] Speaker 01: That's correct. [00:29:12] Speaker 01: So isn't the swearing in then a but for cause of the liability, even within your own formulation of what [00:29:21] Speaker 01: would create colorable immunity? [00:29:22] Speaker 05: Well, I want to return to the words of 1442A1, which talk about an act. [00:29:28] Speaker 05: If we had premised the liability on that act of being sworn in, we would be running into that potential dilemma. [00:29:38] Speaker 02: But we are not premising on that act. [00:29:42] Speaker 02: Your claim is premised, at least in part, on non-resignation. [00:29:48] Speaker 02: which seems like the counterpart of being sworn in. [00:29:54] Speaker 02: So doesn't it depend completely on his status as president? [00:30:02] Speaker 05: And that takes me back to my second argument, which is that even if we pointed to the presidential act of being sworn in, [00:30:11] Speaker 05: We treated that that was an act. [00:30:14] Speaker 05: It's still the liability arises because it's the consequences of his personal acts as president, the ownership of the business, not his official acts. [00:30:26] Speaker 05: That's the dividing line and that there is no colorable immunity [00:30:30] Speaker 05: for purely private acts, unlike the immunity for official acts. [00:30:35] Speaker 05: And even if you don't take the words acts literally, 1442A, you still must recognize that the court has set up this divide and that, put another way, everything that the president does does not create an immunity for him or even a basis for removal from the state court. [00:30:55] Speaker 05: Take the Clinton case, which I gave before, [00:30:59] Speaker 05: If that case had been filed, and people do not normally file cases against high-ranking officials, in the Superior Court, [00:31:08] Speaker 05: Then President Clinton have removed a tort case from the Superior Court to the Federal Court on the grounds that he had a colorable claim to official immunity. [00:31:18] Speaker 05: I said, yes, the answer is no. [00:31:20] Speaker 05: And that's why the removal was improper here, because this case is about President Trump's private business activities, not his official acts as president. [00:31:31] Speaker 01: So again, this is really interesting, I must say. [00:31:34] Speaker 01: But in your brief. [00:31:37] Speaker 01: You refer to the nature of the problem as the implied promise of favorable treatment by the Trump administration, right? [00:31:45] Speaker 01: So implied is normally what we talk about under color of law. [00:31:52] Speaker 01: And the president has to be the president for this implied promise to go on. [00:31:59] Speaker 01: And likewise at 49, you say, that the hotel is luring business away with the implicit promise [00:32:06] Speaker 01: that patronizing will curry favor with President Trump. [00:32:11] Speaker 01: They have an unfair advantage because the hotel and others promote the connection between it and the presidency. [00:32:19] Speaker 01: And here we're talking about the president's actual authority as president, whether appropriate or not, do benefits, but he would only have that authority if he were the president. [00:32:33] Speaker 01: That's not something he has authority to do as a [00:32:37] Speaker 01: private individual who's not the president. [00:32:39] Speaker 05: Well, I certainly want to agree with Your Honor's last couple of sentences, because he can't make any promises that the government will do something to favor a patron of the hotel unless the person who is the government. [00:32:52] Speaker 01: But I also want to be clear, Your Honor, we have... We're still only talking about the colorable defense here. [00:32:57] Speaker 01: But Your Honor... You're asking about, and the whole point here is about [00:33:02] Speaker 01: the implied promise of something that the President will do as President. [00:33:07] Speaker 05: But we have not said that it's the President's implied promise, Your Honor. [00:33:10] Speaker 05: We have said the implied promise, and I call Your Honor's attention to paragraph 18 of our complaint, which I just [00:33:18] Speaker 05: realized today that the district court had never mentioned. [00:33:21] Speaker 05: It's page 42 of the Joint Appendix. [00:33:24] Speaker 05: And we say, the perception by many of the customers and prospective customers, substantially aided by the marketing efforts of officers and employees of the hotel, not Mr. Trump, as well as members of the family of defendant Trump and others associated with him, that it would be to their advantage in their dealings with President Trump and other agencies of the government if they patronize that hotel. [00:33:46] Speaker 05: So we do not depend on President Trump's actively promoting the hotel. [00:33:52] Speaker 01: So that, now you raise another question, which is, had you not sued President Trump, we would not be here. [00:33:59] Speaker 01: They wouldn't have been able to remove the case under the federal officer provision because, I mean, I appreciate they have another argument, but on the argument we're discussing today, because he wasn't the president. [00:34:12] Speaker 01: And if, because he wasn't the defendant. [00:34:16] Speaker 01: So why did you sue the president? [00:34:18] Speaker 01: We sued the president. [00:34:19] Speaker 01: If what you're really complaining about is what you regard as unfair competition by the hotel, you could have had this case in Superior Court. [00:34:29] Speaker 05: Well, as Your Honor pointed out, they have another removal defense which we have responded to, and I won't take the Court's time on that. [00:34:36] Speaker 05: The reason we sued the President was because we didn't know what positions they were going to take with respect to two parts of the case. [00:34:42] Speaker 05: Number one, whether they would claim that we failed to join a necessary party under the [00:34:47] Speaker 05: local equivalent of Rule 19, because we had to have him as the president, we had to sue the owner of the hotel in order to get the relief. [00:34:58] Speaker 05: We didn't know whether they would make that argument. [00:35:00] Speaker 01: Is that an argument? [00:35:01] Speaker 01: I mean, you have to sue the owner of a hotel in order... This is a limited liability corporation, Your Honor. [00:35:10] Speaker 05: We do not know how it's set up. [00:35:12] Speaker 05: We do not know what arguments they would make that we had to have... I suppose then you could have added him if that were required. [00:35:18] Speaker 01: They have never... [00:35:20] Speaker 01: That's an interesting argument. [00:35:23] Speaker 01: I suppose you could have added him as a party if that had happened. [00:35:25] Speaker 05: And the second reason, Your Honor, was if it turned out that we needed to have discovery, it would have been. [00:35:32] Speaker 01: I thought you said there was no act by the president that matters here. [00:35:35] Speaker 01: All the acts are by the host. [00:35:36] Speaker 05: I said that we don't have any acts of the president dealing with his business activities that we alleged him to complain, Your Honor. [00:35:43] Speaker 05: I didn't say that it was impossible that the president has not done other acts. [00:35:47] Speaker 05: purely in his business capacity that we might not want to rely on. [00:35:51] Speaker 05: We did not know what the facts would be at the beginning of this case. [00:35:54] Speaker 05: This case was filed in March of 2017, less than two months after the inauguration. [00:35:59] Speaker 05: And we thought, rather than trying to add the president later on, which would have slowed it down, and they would have removed to the federal court anyway under this other theory, we made the choice that we decided it was better to name the president and not have those problems down the road. [00:36:14] Speaker 05: And if the court were to dismiss President Trump now and reject their other grounds for removal, then the case would go to the Superior Court, because there's no other basis of subject matter jurisdiction. [00:36:27] Speaker 05: We're not asking the court to do that, but Your Honor has raised the possibility. [00:36:30] Speaker 01: I just wanted to add something to raise what time you amended your complaint for district court, not now. [00:36:35] Speaker 05: Your Honor, we amended the complaint for one reason and one reason only. [00:36:40] Speaker 05: not in their removal papers themselves, but in response to our motion to remand, they pointed to two subparagraphs in the complaint which suggested that we were alleging acts of the President while he was in office. [00:36:55] Speaker 05: One of, but not the only basis for, [00:36:57] Speaker 05: opposing removal. [00:36:58] Speaker 05: One of them was a clarification that the president had said to a senior member of the House of Representatives that look at the hotel, it's a wonderful place. [00:37:07] Speaker 02: It's reflected in the briefs. [00:37:09] Speaker 02: You haven't addressed the argument that [00:37:13] Speaker 02: Essentially, your theory has the effect of allowing the District of Columbia to pose an additional criterion on qualification to be president. [00:37:31] Speaker 02: Well, Your Honor, it's a non-ownership of a competitive business. [00:37:37] Speaker 05: Our answer to that is that [00:37:39] Speaker 05: Nothing prevented him from becoming the president or continuing in this office as president. [00:37:45] Speaker 05: It is in his personal capacity that the District of Columbia is imposing any obligations. [00:37:51] Speaker 05: And for the reasons that I've expressed before, that his ability. [00:37:56] Speaker 02: You keep saying that, but the fact is that the consequence of your principle would be that there is a de facto [00:38:07] Speaker 02: additional qualification to become president. [00:38:11] Speaker 02: And that is the absence of ownership of a competitive business, I guess, in the District of Columbia only. [00:38:18] Speaker 02: But then other states might follow suit. [00:38:23] Speaker 02: Isn't that the case? [00:38:25] Speaker 02: We are saying, Your Honor, that neutral law. [00:38:27] Speaker 02: Ownership because of the obvious advantages which follow from combination of having power [00:38:35] Speaker 02: and ownership of a competitive business. [00:38:40] Speaker 02: That's the new rule. [00:38:42] Speaker 05: Our view is that neutral laws of general applicability to elected officers do not run afoul of the prohibition that Your Honor has referred to. [00:38:52] Speaker 02: This is a law that applies simply to either elected officials or perhaps only the president. [00:38:59] Speaker 05: Well, it does. [00:39:00] Speaker 05: Our view is, and we cite the federal lease that applies to, and we think that that's illustrative of the principle in the District of Columbia, that elected officials are not supposed to be in business when being in business enables them to leverage their elected office to gain business for their business. [00:39:18] Speaker 02: I don't know if the provision on leases can [00:39:23] Speaker 02: created a necessary criterion. [00:39:25] Speaker 05: Oh, I didn't mean to suggest it. [00:39:28] Speaker 05: All I said was that that's the principle of which we're operating. [00:39:33] Speaker 05: And the fact that the president has to obey those general laws, like the postal drivers have to obey speed limits, does not impinge on the power of the presidency. [00:39:46] Speaker 05: That nothing in that law would say to the president, you can no longer sign treaties, make appointments. [00:39:51] Speaker 05: or declare war. [00:39:54] Speaker 05: None of that would be affected by this. [00:39:56] Speaker 05: And it's only in his private capacity. [00:39:59] Speaker 05: And it's our view that the importance is to separate his business activities from his presidential activities. [00:40:08] Speaker 05: And that's what makes our case permitted and the other cases not. [00:40:15] Speaker 05: Thank you. [00:40:28] Speaker 00: May it please the court. [00:40:30] Speaker 00: The core theory of this lawsuit is that it violates DC law for the president to own a business. [00:40:37] Speaker 00: We know that not only from what I think Mr. Morrison just said, but from the face of the complaint. [00:40:43] Speaker 00: Paragraph two says, plaintiff's claims, and I'm quoting here, are based on the unfair advantage that the hotel has gained from Donald J. Trump being the president of the United States. [00:40:58] Speaker 00: Paragraph 31 says that plaintiff has no legal basis to complain about competition before January 20th, 2017, when Donald J. Trump began serving as president. [00:41:11] Speaker 00: And paragraph 42, as we've discussed a bit already, requests an injunction required in the complaints own words requiring the hotel's closure or sale or [00:41:23] Speaker 00: President Trump's resignation. [00:41:26] Speaker 00: In other words, so long as the president wishes to be president, he must arrange his investments as DC law supposedly requires. [00:41:36] Speaker 00: These claims are clearly removable to federal court, and it is equally clear from the binding precedent of this court in the DC Court of Appeals that they fail on their merits. [00:41:47] Speaker 00: I'd like to begin with the jurisdictional question. [00:41:50] Speaker 00: We submit the most straightforward basis for removal in this case was the federal officer removal statute, which under Supreme Court precedent is construed broadly, unlike other statutes providing for removal. [00:42:02] Speaker 00: And there are only two relevant requirements. [00:42:05] Speaker 00: First, the federal officer must raise a colorable federal defense. [00:42:08] Speaker 00: And second, there must be a nexus between the complaint of conduct and the federal officer's asserted official authority. [00:42:19] Speaker 00: Plaintiff attempts to conflate these arguments at times, but if you go one by one through them using the applicable legal standards, the president's removal here satisfies both. [00:42:31] Speaker 00: So first, the colorable federal defense requirement. [00:42:35] Speaker 00: The Notice of Removal specify two defenses, absolute immunity and preemption. [00:42:44] Speaker 00: Now we think based on the complaint that we removed from DC Superior Court, absolute immunity is a colorable defense because among the acts that were being complained of in the complaint were post-presidential acts, including in the inauguration parade, which, as we've discussed already, was removed from the complaint after the defendants removed. [00:43:07] Speaker 00: But there's hardly any dispute, I think, that the President's actions within the inaugural parade, which allegedly promoted the hotel, but were still in the inaugural parade, are at least within the outer perimeter of the President's official responsibility. [00:43:23] Speaker 00: And at least that's a colorable, non-frivolous claim. [00:43:26] Speaker 00: And so we think absolute immunity is itself enough to justify the colorable federal defense requirement. [00:43:32] Speaker 00: But preemption is as well, and I would suggest that the Acker case that Mr. Morrison [00:43:37] Speaker 00: mentioned is proof enough of that on its own. [00:43:41] Speaker 00: In that case, there was a revenue raising local law that merely required all who performed [00:43:49] Speaker 00: an occupation within Jefferson County, Alabama, to pay a tax on the income they received from their profession. [00:43:59] Speaker 00: And two federal judges removed that successfully to federal court on the theory that the statute, I'm sorry, the ordinance made it unlawful for them to engage in their profession without paying the tax. [00:44:12] Speaker 00: And the Supreme Court held by a divided vote to be sure that that was a colorable defense and that it was in fact, it presented a nexus, a sufficient nexus between the claim and the federal authority. [00:44:26] Speaker 00: And the defendants, I'm sorry, the dissenting justices argued that it wasn't for an act under color [00:44:32] Speaker 00: of office as the text of 1442A at the time required. [00:44:38] Speaker 00: Instead, it was for a refusal to pay a tax, which can be described in those general terms without any reference to the federal office, unlike the tort claim asserted here. [00:44:48] Speaker 00: And nonetheless, the majority said it was enough based on the structure of the ordinance and the theory that the federal officers were putting forward [00:44:56] Speaker 00: that the activities that gave rise to the asserted liability, namely the federal official's status as federal officials and the income they received thereby, that was enough to satisfy the nexus requirement. [00:45:13] Speaker 00: And if that was true in 1999, when Acre was decided, it's all the more true today, because in 2011, Congress amended the Federal Officer Removal Statute and the Removal Clarification Act to broaden the types of acts that can give rise, that can satisfy the nexus requirement. [00:45:30] Speaker 00: And we quote the legislative history, which has been adopted by several courts of appeals since 2011, that says the intention here not only was to broaden, but was to broaden removal to encompass all claims [00:45:42] Speaker 00: where a federal official is drawn into state court proceedings based on the, quote, status they have as federal officials. [00:45:51] Speaker 03: And so there's no — If we agreed with you as to the removal, why wouldn't we certify this question to the — [00:45:58] Speaker 03: DC Court of Appeals. [00:45:59] Speaker 00: There's no case law out there at all. [00:46:02] Speaker 00: I disagree with that, Your Honor. [00:46:03] Speaker 00: There's two very relevant pieces of case law, one from this court and one from the DC Court of Appeals, Proxmire being the one from this court and the DC Court of Appeals decision in B&W management. [00:46:16] Speaker 00: And there is no reason to think that either of those would be insufficient on its own to resolve the questions in this case. [00:46:25] Speaker 00: B&W management continues to be cited [00:46:28] Speaker 00: by federal courts, I counted at least six times within the past decade for this very proposition, that it specifies what constitutes unfair competition in the district. [00:46:38] Speaker 00: And it continues to be cited by the District of Columbia Court of Appeals as well, although admittedly on the other points that it addresses. [00:46:44] Speaker 00: So there's no reason to think that it's bad law. [00:46:47] Speaker 00: And the same is true with Proxmire, which again continues to be cited. [00:46:51] Speaker 00: And we submit is binding on future panels, given the lack of any indication that [00:46:56] Speaker 00: DC law has changed in the interim. [00:46:58] Speaker 00: The only data point we have on that question is B&W management itself. [00:47:01] Speaker 00: And if anything, that takes an even more restrictive view of unfair competition. [00:47:07] Speaker 00: But to get back to the question about certification in particular, first of all, this was a passing request in a footnote in the opening brief that did not address the criteria for certification. [00:47:17] Speaker 00: And we did that to some extent in our response brief. [00:47:21] Speaker 00: But when this court has a guiding principle for certification, [00:47:26] Speaker 00: And we suggest that the two cases I just mentioned are more than enough. [00:47:30] Speaker 00: A discernible path is the language used. [00:47:33] Speaker 00: There is no reason to certify and trouble the state Supreme Court, in this case the district Supreme Court, with the question. [00:47:40] Speaker 00: Chief Judge Garland, you mentioned the Tiddler case. [00:47:43] Speaker 00: earlier, and the Tiddler case also figures in the case that we cited on certification dial a car, and in some ways the seminal case on these issues. [00:47:52] Speaker 00: Tiddler addresses certification as well, not only the sort of underlying eerie question. [00:47:57] Speaker 00: And Tiddler says that it's irrelevant when the court is fielding a request for certification that DC might, quote, adopt a markedly different view of liability than that which they have heretofore held. [00:48:11] Speaker 00: And that is exactly because [00:48:13] Speaker 00: federal courts are obligated to apply not to amend existing law. [00:48:18] Speaker 00: And I think it now is beyond dispute that plaintiff is asking for a modification of DC law and doesn't have any data to suggest that [00:48:30] Speaker 00: DC law is evolving in the way it desires. [00:48:33] Speaker 00: And so under the Tiddler case and subsequent certification decisions by this court, it would be inappropriate to certify. [00:48:40] Speaker 00: It would, in fact, undermine the stare decisis value of Proxmire, which the district court rightly felt bound by. [00:48:48] Speaker 00: And other courts of appeals have said in similar circumstances that if the goal is to overrule the Federal Circuit Court's own decision, certification is an improper means for doing that. [00:49:00] Speaker 00: So we don't think certification is appropriate under this court's case law. [00:49:03] Speaker 00: And also, because the text of the DC code requires that the question of law be determinative of the cause pending in this court. [00:49:10] Speaker 00: And here, at least the president has two defenses that would make the unfair competition question not determinative. [00:49:19] Speaker 00: Because if the president is right that DC law, DC unfair competition law, cannot do what Cork says it does, consistent with the Constitution, [00:49:29] Speaker 00: then that would make the claim, you know, foreclose the claim irrespective of whether it succeeds as a matter of district law. [00:49:37] Speaker 00: And we've also alleged an immunity defense, and under a whole host of decisions, immunity defenses should be determined at the earliest opportunity. [00:49:47] Speaker 00: Now, we think granting a 12b6 motion is the same time as considering on the merits would be [00:49:53] Speaker 00: the same opportunity as when we first raised the immunity defense, but we would think it would be a threshold question that the court should consider before certifying to the D.C. [00:50:01] Speaker 00: Court of Appeals, should the court think that D.C. [00:50:03] Speaker 00: law was sufficiently unclear to justify that. [00:50:09] Speaker 00: So on the merits, I do want to take issue with one thing. [00:50:13] Speaker 00: Mr. Morrison? [00:50:15] Speaker 01: I just have one question. [00:50:15] Speaker 01: If the president had not been named as a defendant, would it have made a difference? [00:50:23] Speaker 01: Well, I think we wouldn't be here under the federal officer removal statute. [00:50:29] Speaker 00: I think that's correct, Your Honor. [00:50:33] Speaker 00: There are cases that deal with federal officer removal by those who are acting under the authority of the federal officer. [00:50:40] Speaker 00: I'm not sure that would apply here. [00:50:41] Speaker 00: It's not an issue I've really thought through before today. [00:50:45] Speaker 00: But we do have a second basis for removal, which is the complaints reliance on the lease between the GSA and the US government and the old post office LLC. [00:50:59] Speaker 00: And we believe that under the Supreme Court's test in Grable and this Court's test in Bender, that the way that the complaint is framed, it necessarily presents the issue, which is actually disputed and substantial, as to whether the lease provision was violated by the president's assumption of office. [00:51:20] Speaker 00: And here, the GSA believes that the president and Trump old post office OLC are in compliance with that [00:51:28] Speaker 00: And so the court disputes it. [00:51:34] Speaker 00: But anyway, that's the only other basis that I could think of that would support removal. [00:51:38] Speaker 00: Having removed on federal officer grounds, that establishes the court's jurisdiction. [00:51:44] Speaker 00: And we cite cases for the proposition that future developments, including if the district court had for some reason dismissed the president only, would not undermine the subject matter jurisdiction at the time of removal. [00:51:54] Speaker 00: But that's all kind of academic at this point. [00:51:57] Speaker 00: And unless the court has any other further questions about jurisdiction, I'm happy to say a few words more about the merits of the claim. [00:52:06] Speaker 00: So I wanted to take issue with one thing Mr. Morrison said about the Proxmire case, because that case is not merely similar at some high level of generality. [00:52:14] Speaker 00: Everything alleged here, I believe, is alleged at least as clearly, and perhaps more so, in that case. [00:52:22] Speaker 00: So Mr. Morrison suggested that there were no implied promises [00:52:25] Speaker 00: Well, there were explicit actions, according to the facts alleged in the Proxmire complaint, that Senator Proxmire was voting favorably to positions held by patrons and prospective patrons of the tour business that his wife owned. [00:52:42] Speaker 00: And that is much more than anything that's alleged in the complaint. [00:52:45] Speaker 00: Paragraph 18 merely alleges, taken at face value, the paragraph Mr. Morrison was citing earlier, that merely alleges that there's a perception of implied promises, supposedly based on marketing efforts that are not specified by the hotel and family members. [00:53:03] Speaker 00: But in any event, Proxmire contains exactly the allegation that Mr. Morrison suggests his client's complaint adds, and of course, [00:53:14] Speaker 00: This court said that even with that allegation, there were no allegations in the complaint to specify any tort against either defendant. [00:53:24] Speaker 00: So unless the court has any other further questions, I think the court's failure to identify even one case or treatise or law review article suggesting that public officials are barred from owning businesses as a matter of tort law is enough to show the court's claim is without legal support. [00:53:42] Speaker 00: And we would ask that the court affirm. [00:53:46] Speaker 00: Questions? [00:53:46] Speaker 01: Thank you. [00:53:49] Speaker 01: Opposing counsels left you a couple of minutes. [00:53:54] Speaker 02: I'd like to ask you about footnote three in B and W. You say in your reply brief that the court in that footnote does not say that the list derived from Prosser is exclusive, right? [00:54:08] Speaker 02: But the examples that are given, which if any of you see as closest to [00:54:16] Speaker 02: a business which trades on the kind of advantage that you're pointing to here. [00:54:25] Speaker 05: I would have to confess you're out of it. [00:54:26] Speaker 05: None of them is very close to what we have here. [00:54:29] Speaker 05: But I think one thing is interesting about that footnote. [00:54:31] Speaker 05: Even though that opinion was written four years after the Proxmire case came down, there's no reference to Proxmire in there. [00:54:38] Speaker 05: So it can't be implicitly noted that the D.C. [00:54:40] Speaker 05: Court of Appeals has approved any aspect of Proxmire. [00:54:45] Speaker 02: And by the same token, it can't be suggested that the D.C. [00:54:48] Speaker 02: Court of Appeals has in any way disapproved of Proxmire. [00:54:50] Speaker 02: Correct, Your Honor. [00:54:51] Speaker 01: Correct, Your Honor. [00:54:53] Speaker 01: What about the statement in Proxmire itself that [00:54:57] Speaker 01: The scope of this tort has been limited to three categories, and then lists those three categories. [00:55:04] Speaker 05: Well, with all due respect, Your Honor, to that opinion, which was, I believe, a Procurium opinion. [00:55:11] Speaker 01: I noticed you say two things. [00:55:13] Speaker 01: One, Procurium. [00:55:14] Speaker 01: I didn't realize Procurium opinions aren't as important. [00:55:18] Speaker 01: I would stop writing them if I knew that. [00:55:20] Speaker 01: And second, you say it's old. [00:55:23] Speaker 01: We don't have a view that old cases aren't still the law. [00:55:26] Speaker 05: Yes, but it's old in relation to the law of the District of Columbia, Your Honor. [00:55:30] Speaker 05: It hasn't developed. [00:55:31] Speaker 05: Because there's been nobody brought a case like this, Your Honor. [00:55:34] Speaker 05: The first time somebody has to bring a case, they have to bring a case. [00:55:37] Speaker 05: It's new. [00:55:37] Speaker 05: It's not here before. [00:55:39] Speaker 01: What do you say about the language that says it's limited? [00:55:43] Speaker 01: I'm sorry. [00:55:44] Speaker 01: The language in Proxmire that says it's limited to those three categories. [00:55:47] Speaker 05: That's the court's view. [00:55:49] Speaker 05: I do not believe that courts, this court or other common law courts, in developing common law should make pronouncements saying it's limited to cases where we're dealing with a statute, of course you could limit it. [00:56:02] Speaker 05: But the essence of the common law is it develops over time. [00:56:07] Speaker 05: And the fact that nothing has been before it is not as though it's precluded by statute. [00:56:11] Speaker 05: So that case is wrong. [00:56:13] Speaker 05: The decision is not wrong. [00:56:16] Speaker 05: The word limited, it seems to me, if it's limited to this date, would be fine. [00:56:21] Speaker 05: But to treat that as if it was a statute that thereby ended the question of what unfair competition should be in the District of Columbia is not, I think, a fair reading of that case. [00:56:33] Speaker 01: What about the language that I think opposing counsel was referring to, although it didn't actually cite the language? [00:56:39] Speaker 01: In Proxmire, the major allegation under the rubric of unfair competition is that Ms. [00:56:44] Speaker 01: Proxmire has utilized in the business the prestige and context enjoyed by a senator's wife to gain competitive advantage over the appellant. [00:56:56] Speaker 01: Why isn't Ms. [00:56:57] Speaker 01: Proxmire in that case equivalent to the hotel in this case? [00:57:02] Speaker 05: Because she hasn't made a promise that if you patronize her business, her husband will do a favor for you. [00:57:09] Speaker 01: But she did get space in the Senate that she would not be able to have gotten without her husband. [00:57:15] Speaker 01: The allegations in that case is that there were all kinds of entrees that only were available because of her husband. [00:57:24] Speaker 05: That is true, Your Honor, but it doesn't seem to be that that's parallel to what we have here. [00:57:29] Speaker 05: The crux of what we have here is that a private business is profiting from the implicit promises that the government official will do favors for those who patronize the business. [00:57:42] Speaker 05: That's a different set of allegations than were in Proxmire. [00:57:48] Speaker 05: And it was unclear what they could have done in proxmire to a person who was not an elected official, unclear what the relief they wanted was, except for money damages, perhaps. [00:58:00] Speaker 05: So let me just say one final word about the but for causation question. [00:58:05] Speaker 05: But for causation is an infinitely expandable notion related to. [00:58:11] Speaker 05: And if this hotel had been purchased, [00:58:16] Speaker 05: while Mr. Trump was in office instead of beforehand. [00:58:20] Speaker 05: I don't think anybody could say that that was an act that was protected by whatever immunity he may have. [00:58:28] Speaker 05: And since I believe, and I think the court, the case has sustained the proposition, section 1442A1 is about protecting presidential activities as president. [00:58:38] Speaker 05: and not as a citizen who is both a citizen and individual, has private businesses and president, that the immunity would not apply to the purchase case and therefore we don't think it applies here. [00:58:49] Speaker 05: The Court has no further questions. [00:58:51] Speaker 05: Thank you very much. [00:58:52] Speaker 01: Thank you for an interesting argument on both sides. [00:58:54] Speaker 01: We'll take the matter under discussion.