A Tension in Judge Wilkinson’s Emoluments Clauses Dissent

[This post is co-authored with Professor Seth Barrett Tillman]

Last week, the en banc Fourth Circuit decided two related cases in the Foreign Emoluments Clause litigation. First, In re: Donald Trump denied the official-capacity defendant’s petition for a writ of mandamus. (The official-capacity defendant is the United States, which is represented by the Department of Justice.) Second, District of Columbia v. Trump dismissed the individual-capacity defendant’s interlocutory appeal for lack of jurisdiction. (The individual-capacity defendant is the President, qua as a government official, represented by the President’s private counsel.) Both cases divided the en-banc court 9-to-6. Judge Motz wrote the