"There are only two ways of telling the complete truth—anonymously and posthumously."Thomas Sowell

Saturday, March 16, 2019

Coffee and Pants

"I get up, put on coffee and pants, see if I have something to say." 
I have never read Padgett Powell, but when I saw this quote of his some years ago, I remembered it. Because it was amusingly put, partly. But also because, as a writer myself, daily polling myself to see whether I had something to say, I found in it a mirror, in which I saw reflected an irksome creature: the modern writer. Its image gave offense to my internal editor -- the sleepless tyrant -- who, when I sit down to write, shrilly admonishes: "do not write as though you are stalling until you think of something to say! Do not be a loquacious bore!" It lashes me with Tocqueville's tongue: “to remain silent is the most useful service that a mediocre speaker can render to the public good.” And it mocks me as Evelyn Waugh mocked his fictional babbler Sebastian: when dear Sebastian speaks it is like a little sphere of soapsud drifting off the end of an old clay pipe, anywhere, full of rainbow light for a second and then - phut! vanished, with nothing left at all, nothing. 
The modern condition is a world full of people, writers and talkers all, with nothing to say to one another, all breathlessly writing and talking at each other at once. And here I am, rising each morning, heading off eager to join them. 
Neither I nor my internal tyrant will have total victory, so we have reached a pact, whereby I may be allowed write -- the editor's volume turned down, if never on mute -- until I think of something to say -- boring myself even right back to bed if I like -- on condition that I not consider publishing my impressionistic ravings. I have promised to try not to give to the reader, as a vain Alexander to a contented Diogenes, something he does not want by taking away what I cannot replace. There are, without my contributions, quite enough "superfluities as neither accommodate the body nor improve the mind," as Samuel Johnson said of modern writers, whose "wish is not to be studied but to be read." As I say, I've never read Powell, but frequently I feel, after reading the day's "takes" by those straining for something to say, the oily slick of so many burst soapsuds.   
In this I am, the more I consider the subject, on to something. Dr. Johnson in fact forecasted Mr. Powell more than a few times. "It is strange that there should be so little reading in the world," he later observed, "and so much writing." And he counted it a vice -- a Frenchman's vice, no less -- to talk needlessly: "A Frenchman must be always talking, whether he knows any thing of the matter or not; an Englishman is content to say nothing, when he has nothing to say." Writing in the 20th century, Michael Oakeshott identified discrimination and restraint as vital organs to education and culture: “To be educated is to know how much one wishes to know, and to have the courage not to be tempted beyond that limit.” Genuine culture, he held, teaches that “there is much one does not want to know.” The prolific Tom Wolfe showed admirable restraint in slowing his pace eleven long years before publish his second novel, A Man in Full, though by then at age 68 surely he had begun to feel a twinge of urgency.  
Searching for practical solutions, Joseph Epstein has wondered what it might take to get some of these people to stop writing. Should they merely name a figure an endowment could be established. The JD Salinger Chair in Keeping It to Yourself, perhaps. An annual awards banquet to recognize Remarkable Achievements in Restraint of Trivial Expression. Don't laugh. Architects stumbled onto this in the 1980s, after a run of historically ugly new buildings. “We used to give prizes to architects for doing buildings," observed Gordon Bunshaft." Now we give prizes to architects for drawing pictures.” It was true: in the wake of the disastrous experiments in worker housing (the visionary Pruitt-Ingoe projects having been put out of their misery in the mid-'70s), the American Academy and Institute of Arts and Letters awarded the Arnold W. Brunner Memorial Prize for Architecture to Michael Graves ... for his drawings. The buildings, it was clearly implied, won't be necessary.
But such a temptation, for writers, is the internet! Truman Capote chided that Kerouac didn't write so much as he typed, but imagine even asking 21st century man to constrain his broadcast even through the funnel of a keyboard: with podcasts and vidcasts and digital dictation, anyone can publish simply by talking into a smartphone. "Put on coffee and pants," Powell said, and only then see if you have something to say? The piker! Why wait? Just talk at your phone whilst putting on coffee and pants and phut! published: it is the world's problem now. The trivial, Jean-Francois Millet said, gives expression to the sublime. We are all impressionists now. But the "sublime," alas, proved just another loquacious bore. 
We are left with the leavings of all these bores, their coffee grounds and half-finished scribblings. Never has there been so much investment into human energy, with so little return. Think of the money spent on coffee every day. The number of hours devoted to writing, all sorts (think of the implications presented just in producing the writer's coffee and pants -- fair trade; rain forests; exploited labor; living wages; inequality; this pretentious blog post; &c). Add in the money invested in academia, with the rise of "academics" producing hyper-specialized books and papers and commentaries of commentaries. Is not the common introvert-writer's gripe against extroverts that they talk even while thinking of something to say? But one who talks at least limits his logorrhea to the spoken word, which biodegrades into the atmosphere and leaves us otherwise in peace. The loquacious writer, meanwhile, foists himself upon bookstores and blogs and internet search results of every sort, where his leavings seem never to disappear. Talkers only bend our ears; writers leave a permanent crease. One ducks out of a party for a moment's respite from extroverts vying for one's attention, only to find some introvert has carved his initials in the urinal.
Is this logorrhea stunting human intellectual development? Just as a thousand monologues do not make a dialogue, a thousand dialogues do not make for a public discourse. We are fractured, and not just in the political sense. Our attention is fractured, yes, but even that is not it. Our worldview is fractured, in that we do not even share a view of what the good life is, and so how are we to have a discourse about how to achieve it? Books, said Francis Bacon, cannot teach the use of books; knowledge must be accommodated to the purpose of life, which can only be known through honest commerce with mankind. One wants always to halt part way into any discussion and say, "but let's back up." Because there is always a sense, a pang of anxiety, that we've overlooked a deeper disagreement on some premise fundamental to carrying on whatever discussion we try to have. 
I confess I cannot read a magazine anymore. I cannot follow the threads. I tried the recent issue of The Atlantic. There one may find a story about lice being separated from their hosts, a problem -- the generous reader is asked to grant -- for people who hoped there might be some new interesting facts to learn and report about the parasite-host relationship. I do not know what facts, of factoids, these might be, or what tendency they might have to advance the human project in answering our Big Questions. And perhaps we cannot learn to answer the Big Questions until we relearn how to ask them. But in The Atlantic, a politics and current events magazine, the piece about the parasite-host relationship strikes me as autobiographical of their magazine-reader relationship. Any net reduction in sources for new information -- including stories about parasites being removed from their hosts -- threatens the magazine with being separated from their readers. I am not saying the essay is not important. What I am saying is, I could do without it sucking at my eyeballs. 
Think of how much an average politically-engaged person has to read and watch and absorb every day to stay informed. How would you teach a child to work up to your level? Would you even if you could? Don't you feel a sort of coldness, a chilly ickiness, after a day splashing about in those waters? Politics, the saying goes, is upstream of culture. The focus too often is on what's in the water. The fact is a burst dam will drown us before it poisons us.
But surely, you say, there is information we cannot do without? I would not begrudge anyone peeking to learn of any reports of imminent violent death. Or major disruptions in one's livelihood. The interest a farmer pays the news. But unless one is a microbiologist, one does not need to read a lice story about a future decline in lice stories. The reader -- and the writer -- looks out upon an ocean of web content, and asks: How can I consume this? Or: how could I add to this? One can only splash about in the shallows, or drown in the depths. It is not enough even to conclude, in fatalistic fashion, that there is nothing to be added, that it has all been said before. Perhaps it has been said before. But even so, there is the project -- perhaps the much more difficult project -- of giving the content shape and form. It is "not wholly without use to mankind," said Dr. Johnson, "that books are multiplied, and that different authors lay out their labours on the same subject; for there will always be some reason why one should on particular occasions, or to particular persons, be preferable to another; some will be clear where others are obscure, some will please by their stile and others by their method, some by their embellishments and others by their simplicity, some by closeness and others by diffusion." 
Before you can learn a fact, you have to have a place to put it. I remember buying my first stereo (right around the end of the era when you could buy record players), I organized my entire room so that the prized shiny black box with lighted screen and impressive buttons and knobs and dials could be displayed with prominence. When we learn a fact, where does it go? Have we any place to put it? How are we to remember it -- what associations do we form? If intelligence is about the relation of ideas, then oughtn't we give some thought to our faculty for relation? Even in the land of flies, a spider without spinnerets starves. Santayana's observation was that ideology helps us bear our ignorance of facts. But the corollary is that ideology might also help us with the bigger problem of selecting, relating, and thus actually understanding facts. An ideology, in other words, helps us tie-break conflicting facts. The public has been provided more facts, and has become more ideological, and this, we are told, is a paradox. It is not a paradox. It is proof of the corollary to Santayana's observation: supply a person with more and more instances of conflicting facts and you have supplied that person with more occasions to rely upon his ideology.
Facts alone are not interesting. We have never in human history had so many facts, and yet, it seems, so little understanding. 
So the project begins with learning a system of relation. What makes a fact relevant? Why am I reading this story? Or this news article? The writer wrote the story because it relates to that writer's system of values and meaning: what is the writer's system of values and meaning? Do I share that system? These are questions we never learn to ask. Not in school, God knows. My wife and I, homeschooling our two young children, often look at the mountain of educational resources and sigh in anticipatory exhaustion: how can we hope to climb this mountain? How can we possibly teach our children all of this? But this is precisely the wrong question. Our job is not to carry them up the mountain. Our job is first to show them the mountain. And then wait for them to tell us what part they might like to start climbing. And then help them like crazy to climb, as high as they want to go. 
That's one part of education. The other is the system of values and meaning. Otherwise we become susceptible, like Kurtz in Joseph Conrad's Heart of Darkness, to the whisper coming from the emptiness, appealing to the emptiness within. "There was something wanting in him—some small matter which, when the pressing need arose, could not be found under his magnificent eloquence. ... the wilderness... echoed loudly within him because he was hollow at the core…." 

Hollowness begins with the inability to relate -- to relate facts into a system of beliefs, and to relate beliefs to a sense of meaning. "Orwell feared," wrote Neil Postman, "that the truth would be concealed from us. Huxley feared the truth would be drowned in a sea of irrelevance." Irrelevance, and in, the lack of relation. The destruction of knowledge of the individual's relation to the world, to the beyond. That is the fate to be feared; it is the fate to be avoided at all costs; and yet it is the fate we are rushing toward with reckless abandon.

Tuesday, March 12, 2019

Part V: The Mystery of DC & MD v Trump

DC & MD v. Trump,
Civ. A. No. 8:17-cv-01596-PJM (D. Md. filed June 12, 2017) (Messitte, J.)

Yesterday, I discussed how Judge Messitte prevailed on Plaintiffs to amend their complaint and to file a second claim—the second one against the President in his personal or individual capacity. Today, I want to discuss what has happened (so far) to that individual capacity claim during the litigation in the trial court and in the court of appeals.

As explained, Judge Messitte was responsible for adding the individual capacity claim against the President. He was also responsible for trying to dismiss that claim at the eleventh hour. This is what happened.

Judge Messitte denied the Department of Justice’s (“DOJ’s”) motion to dismiss the official capacity claim. The President’s counsel had a separate motion to dismiss. It was fully briefed. The President’s counsel asked to participate in the already scheduled oral argument on the DOJ’s motion. Judge Messitte denied that request. Judge Messitte refused to hold a separate hearing on the President’s motion. Likewise, Judge Messitte refused to rule on the motion itself; his inaction lasted well over 6 months. Nevertheless, Judge Messitte ordered the parties to go forward with discovery—all while the President’s motion remained both unheard and unresolved. In response, the President’s counsel filed an appeal. The President’s counsel’s position is that Judge Messitte’s moving forward with discovery, without having first ruled on the President’s motion to dismiss, amounts to constructive denial of the President’s motion. If the President’s counsel’s position is correct, that would give the President an immediate right of appeal (at least) in regard to the President’s unique immunity and immunity-related defenses. A notice of appeal having been filed, one would have expected Judge Messitte to have considered himself divested of the matter; one would have expected Judge Messitte to have left the case in the hands of the United States Court of Appeals for the Fourth Circuit. At least, that is what I would have expected.

But, I am not Judge Messitte. Instead, this is what he did. Judge Messitte, sua sponte, ordered both parties to address “whether the Court can dismiss without prejudice the claims against President Trump in his individual capacity, and if so, whether it should do so.” It was not hard for Plaintiffs to read between the lines. Two days after Judge Messitte issued his sua sponte order, the Plaintiffs (once again) did precisely what they were told: Plaintiffs moved to “voluntarily dismiss without prejudice the above-captioned action against Donald J. Trump in his individual capacity to allow the claims against President Trump in his official capacity to move forward expeditiously.” (emphasis added).

I do not know why Judge Messitte took this course of action. But if I had to guess this is what I would say. Judge Messitte denied the President his day in court, and when it looked like the President’s counsel was going to get his day in front of another court, Judge Messitte actively sought to frustrate those efforts. To put it another way, Judge Messitte, and all the parties, and all the amici, and all sophisticated observers know—we all know that this lawsuit was not brought by Plaintiffs in the hopes of prevailing on the merits. Plaintiffs would be happy with such a victory if it should come their way, but that is not why they brought this lawsuit. This lawsuit’s primary goal was and remains an effort by Plaintiffs to get discovery against Trump and his commercial entities—to see what (if anything) shakes out. The discovery in this lawsuit ordered by Judge Messitte was put on hold during the appeals process, and when Judge Messitte saw that his efforts to get discovery were being frustrated by the President’s counsel’s filing an appeal, Judge Messitte advised the Plaintiffs how (they might try) to lock the case out of the court of appeals and to put it back in his bailiwick where discovery could proceed, even where he refuses to rule promptly on threshold motions. Again, the President is not litigating against the Plaintiffs: they are little more than passive observers in this action. It appears to me that this litigation is, in reality, between Judge Messitte* and President Trump. Of course, that is all just guesswork on my part.

There is a simple way for all of us to find out what prompted Judge Messitte’s repeated extraordinary interventions in this matter. Judge Messitte could put forward a sua sponte filing with the Fourth Circuit (or even on his own docket) explaining his unusual course of conduct. It would be helpful if the Fourth Circuit would ask him to do so. Transparency is a good thing—for elected officials and also for courts of law.

Seth

* For a different characterization of Judge Messitte’s conduct, see: Jed Shugerman, The Supreme Court Could Take a Lesson From the Emoluments JudgeSlate (Apr. 2, 2018, 5:07 PM), <https://slate.com/news-and-politics/2018/04/the-supreme-court-could-take-a-lesson-from-the-emoluments-judge.html> (characterizing Judge Messitte’s decisions in this matter as “hav[ing] the courage to enforce the Constitution” (emphasis added)).

Welcome Instapundit Readers! 

Seth Barrett Tillman, Part V: The Mystery of DC & MD v Trump, New Reform Club (Mar. 12, 2019, 11:30 AM), <https://reformclub.blogspot.com/2019/03/part-v-mystery-of-dc-md-v-trump.html>.

Seth Barrett Tillman, Part IV: The Mystery of DC & MD v Trump, New Reform Club (Mar. 11, 2019, 2:04 AM), <https://reformclub.blogspot.com/2019/03/part-iv-mystery-of-dc-md-v-trump.html>.

Seth Barrett Tillman, Part III: The Mystery of DC & MD v Trump, New Reform Club (Mar. 10, 2019, 7:13 AM), <https://reformclub.blogspot.com/2019/03/part-iii-mystery-of-dc-md-v-trump.html>.

Seth Barrett Tillman, Part II: The Mystery of Senator Richard Blumenthal v. President Donald J Trump, New Reform Club (Mar. 8, 2019, 1:38 AM), <https://reformclub.blogspot.com/2019/03/part-ii-mystery-of-senator-richard.html>.

For Part I, see: Seth Barrett Tillman, The Mystery of Blumenthal v. Trump, New Reform Club (Mar. 7, 2019, 2:16 AM), <https://reformclub.blogspot.com/2019/03/the-mystery-of-blumenthal-v-trump.html>.

*I had several filings before Judge Messitte in this matter. See Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of Neither Party with Respect to Motion to Dismiss on Behalf of Defendant in his Individual Capacity, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, and in his individual capacity, Civ. A. No. 8:17-cv-01596-PJM (D. Md. May 8, 2018) (Messitte, J.), ECF No. 114, 2018 WL 2159867, 2018 U.S. Dist. Ct. Motions LEXIS 32, <https://ssrn.com/abstract=3174268>, <https://www.scribd.com/document/378704459/DC-and-Maryland-v-Trump-Amicus-brief-of-Seth-Barrett-Tillman-in-Support-of-Neither-Party-with-Respect-to-Individual-Capacity-Motion-to-Dismiss>;

Letter Brief filing Supplemental Authority, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Mar. 19, 2018) (Messitte, J.), ECF No. 97, <https://www.scribd.com/document/374271648/D-C-and-Maryland-v-Trump-Notice-of-Supplemental-Authority-3-19-18>, <https://ssrn.com/abstract=3141732>;

Letter Brief, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, Seeking an Order in regard to Plaintiffs’ Motion to Amend the Complaint, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Jan. 29, 2018) (Messitte, J.), ECF No. 88, 2018 WL 1128948, <https://www.scribd.com/document/370301834/Maryland-v-Trump-Correspondence-1-29-18>, <https://ssrn.com/abstract=3112896>;

Corrected Response [Brief] of Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Dec. 31, 2017) (Messitte, J.), ECF No. 77, 2017 WL 6880026, 2017 U.S. Dist. Ct. Motions LEXIS 466, <https://ssrn.com/abstract=3089868>; and,

Motion and Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Oct. 6, 2017) (Messitte, J.), ECF No. 27-1, 2017 WL 4685826, 2017 U.S. Dist. Ct. Briefs LEXIS 410, <https://ssrn.com/abstract=2996355>.

I have several filings before the Fourth Circuit in this matter. See Motion of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project For Leave to Participate in Oral Arguments, In re Donald J. Trump, and DC & MD v. Trump, App. Nos. 18-2486, 18-2488 (4th Cir. Feb. 27, 2019), ECF No. 52 (App. No. 18-2486), ECF No. 43 (App. No. 18-2488), 2019 WL 979106, <https://ssrn.com/abstract=3340961>;

Brief of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project in Support of Defendant-Appellant, District of Columbia and State of Maryland v. Donald J. Trump, in his individual capacity, App. No. 18-2488 (4th Cir. Jan. 31, 2019), ECF No. 31-1, 2019 WL 411728, 2019 U.S. 4th Cir. Briefs LEXIS 3, <https://ssrn.com/abstract=3314702>; and,

Amicus Brief of Scholar Seth Barrett Tillman and the Judicial Education Project in Support of Petitioner, In re Donald J. Trump, in his official capacity, App. No. 18-2486 (4th Cir. Jan. 29, 2019), ECF No. 28-1, 2019 WL 366219, 2018 U.S. 4th Cir. Briefs LEXIS 11, <https://ssrn.com/abstract=3314703>.

Monday, March 11, 2019

Part IV: The Mystery of DC & MD v Trump

re: DC & MD v. Trump, Civ. A. No. 8:17-cv-01596-PJM (D. Md. June 12, 2017) (Messitte, J.), ECF No. 1, 2017 WL 2559732, <http://guptawessler.com/wp-content/uploads/2012/05/2017-6-12-DC-MARYLAND-vs-TRUMP.pdf>


There are three Emoluments Clauses cases against the President. All three were initially filed in federal trial (a/k/a district) courts.

The first filed was CREW v. Trump: it was filed on January 23, 2017 in the Southern District of New York, and it is now on appeal in the Second Circuit. A decision from the Second Circuit is due circa April 30, 2019. Two other actions were filed during June 2017. Blumenthal v. Trump was filed on June 14, 2017 in the District of Columbia (“DDC”). A decision from DDC was due circa December 7, 2018. Finally, DC & MD v. Trump was filed on June 12, 2017 in the District of Maryland—this action is now on appeal in the Fourth Circuit.

All three actions were initially filed against the President exclusively in his official capacity. That’s still true for CREW and for Blumenthal. But the third case, DC & MD v. Trump, took a different path. This post explains how that came about. 

Initially, DC & MD v. Trump, like the other two lawsuits, was only filed against the President in his official capacity. What does that mean? It means the defendant is the state, i.e., the federal government, and the state is represented by the U.S. Department of Justice (“DOJ”). The President, although named as the defendant, is only a nominal defendant; the real defendant is the federal government. When the case was filed, there was no claim against Donald J. Trump, the individual. The case was assigned to Judge Peter J. Messitte (District of Maryland). Judge Messitte held an initial oral argument on January 25, 2018. At this juncture, the President (as an individual) was not being sued, and so, he had no representation at the hearing. What did Judge Messitte do at that hearing? Judge Messitte urged (actually, he all but ordered) the Plaintiffs to sue the President individually.

The DOJ’s attorneys did not object. Why should they?—They do not represent the President’s personal interests. Rather, they represent the institutional interests of the government of the United States, the Executive Branch and presidency, and (truth be told) the DOJ itself. The Plaintiffs initially expressed diffidence at Judge Messitte’s “suggestion,” but after some in-court banter and cajoling, Plaintiffs consented and agreed to file an amended complaint suing the President in his individual capacity.

Was Judge Messitte’s ordering the Plaintiffs to dragoon a second defendant into the case a breach of judicial ethics? I really do not know. But it is odd. Imagine one day finding yourself personally named as a defendant in some ongoing lawsuit, not because the plaintiff decided to drag you into the case in relation to some newly discovered evidence, but rather because the judge ordered the plaintiff to sue you before any discovery revealed any specific wrongdoing on your part. We don’t usually imagine that federal judges ought to chase down would-be plaintiffs, and then proceed to advise and urge (and order) them to sue people that the plaintiff had expressed no interest in suing. But that is basically what happened here.

Think about the next step. You find yourself in a case because the judge dragged you into it. The judge thought it sensible that you should be sued as a matter of law. Now, how are you supposed to mount a defense? If you put a defense forward, to the extent you are correct, it means the judge’s prior ex parte advice to the plaintiff must have been wrong.** The problem is the judge is no longer a disinterested adjudicator—he took a side and did so when you were not around to object. For the judge to vindicate your position, i.e., your defense, it means he wasted the plaintiff’s time and efforts when he (i.e., the judge) ordered the plaintiff to amend his complaint and to sue you (i.e., the second defendant). Bottom line: the chance of your defense prevailing is not likely. Even if the judge is correct (i.e., that you were a legitimate target for plaintiff’s lawsuit), justice will not appear to have been done. That is why, as a general matter, judges are not supposed to take sides by advising parties as to litigation strategies and then proceed to rule on the propriety of the very strategies that they had urged a party to take—judges are supposed to be disinterested and to protect the appearance of being such. To put it another way, a defendant is supposed to litigate against the plaintiff—not against the judge. And where the judge directs the plaintiff to sue a defendant, then the reality is that the defendant’s opponent is the judge, and not the plaintiff.

Now, there is a traditional exception to judges’ not descending into the arena and taking sides by advising a party as to its litigation strategy. It happens that indigent, illiterate, and unrepresented prisoners will bring (Section 1983 and Bivens) civil rights actions against their jailors—such jailers might be state or federal officers. In this type of situation, judges will give some advice to the prisoner so that the litigation can reach the merits. But that is not what we have in DC & MD v. Trump. DC and MD are represented by two able lawyers—the Attorney General for DC and the Attorney General for Maryland, and the two AGs are aided by vast swathes of professional staff, and each staff is further supported by friendly amici who filed 100s of pages in support of the Plaintiffs’ briefs. DC and Maryland are not indigent—they are not illiterate—they are not unrepresented. So there was no pressing reason for Judge Messitte to inject himself into Plaintiffs’ litigation strategy. But that is precisely what Judge Messitte did. Again: I am not putting forward a legal conclusion here. I am not saying what Judge Messitte did was unethical under settled rules, ethical canons, or legal norms. But I will say, if you were on the wrong side of Judge Messitte’s judicial activism, you might think his conduct unfair. Perhaps that is what Donald Trump (who is paying his own litigation costs out-of-pocket) thinks too, and just perhaps, that is why he holds the federal judiciary in such high regard.

**The House of Lords warned against a very similar type of judicial overreach in American Cyanamid Co v Ethicon Ltd (No. 1) [1975] AC 396, [1975] UKHL 1 (Diplock, J). 

Seth

Welcome Instapundit Readers!

Seth Barrett Tillman, Part IV: The Mystery of DC & MD v TrumpNew Reform Club (Mar. 11, 2019, 2:19 AM), <https://reformclub.blogspot.com/2019/03/part-iv-mystery-of-dc-md-v-trump.html>. 

Seth Barrett Tillman, Part III: The Mystery of DC & MD v TrumpNew Reform Club (Mar. 10, 2019, 7:13 AM), <https://reformclub.blogspot.com/2019/03/part-iii-mystery-of-dc-md-v-trump.html>.

Seth Barrett Tillman, Part II: The Mystery of Senator Richard Blumenthal v. President Donald J TrumpNew Reform Club (Mar. 8, 2019, 1:38 AM), <https://reformclub.blogspot.com/2019/03/part-ii-mystery-of-senator-richard.html>.

For Part I, see: Seth Barrett Tillman, The Mystery of Blumenthal v. TrumpNew Reform Club (Mar. 7, 2019, 2:16 AM), <https://reformclub.blogspot.com/2019/03/the-mystery-of-blumenthal-v-trump.html>. 


*I had several filings in this matter. See generally Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of Neither Party with Respect to Motion to Dismiss on Behalf of Defendant in his Individual Capacity, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, and in his individual capacity, Civ. A. No. 8:17-cv-01596-PJM (D. Md. May 8, 2018) (Messitte, J.), ECF No. 114, 2018 WL 2159867, 2018 U.S. Dist. Ct. Motions LEXIS 32, <https://ssrn.com/abstract=3174268>, <https://www.scribd.com/document/378704459/DC-and-Maryland-v-Trump-Amicus-brief-of-Seth-Barrett-Tillman-in-Support-of-Neither-Party-with-Respect-to-Individual-Capacity-Motion-to-Dismiss>;


Letter Brief filing Supplemental Authority, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Mar. 19, 2018) (Messitte, J.), ECF No. 97, <https://www.scribd.com/document/374271648/D-C-and-Maryland-v-Trump-Notice-of-Supplemental-Authority-3-19-18>, <https://ssrn.com/abstract=3141732>;

Letter Brief, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, Seeking an Order in regard to Plaintiffs’ Motion to Amend the Complaint, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Jan. 29, 2018) (Messitte, J.), ECF No. 88, 2018 WL 1128948, <https://www.scribd.com/document/370301834/Maryland-v-Trump-Correspondence-1-29-18>, <https://ssrn.com/abstract=3112896>;

Corrected Response [Brief] of Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Dec. 31, 2017) (Messitte, J.), ECF No. 77, 2017 WL 6880026, 2017 U.S. Dist. Ct. Motions LEXIS 466, <https://ssrn.com/abstract=3089868>;

Motion and Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Oct. 6, 2017) (Messitte, J.), ECF No. 27-1, 2017 WL 4685826, 2017 U.S. Dist. Ct. Briefs LEXIS 410, <https://ssrn.com/abstract=2996355>.



Sunday, March 10, 2019

Part III: The Mystery of DC & MD v Trump




re: DC & MD v. Trump, Civ. A. No. 8:17-cv-01596-PJM (D. Md. June 12, 2017) (Messitte, J.), ECF No. 1, 2017 WL 2559732, <http://guptawessler.com/wp-content/uploads/2012/05/2017-6-12-DC-MARYLAND-vs-TRUMP.pdf>

I have already discussed Blumenthal v. Trump—the Emoluments Clauses case before Judge Sullivan in the federal district court in the District of Columbia. Blumenthal is one of three such cases. Another such Emoluments-Clauses-related case against the President is DC & MD v. Trump.

Blumenthal was filed on June 14, 2017 by assorted representatives and senators (all Democrats). DC & MD was filed on behalf of the District of Columbia and Maryland by the Attorneys-General for DC and MD (both Democrats) on June 12, 2017 in the federal district court in Maryland. This case was assigned to Judge Petter J. Messitte. The case has since been appealed to the Fourth Circuit. But it is worth a review what happened (or, more precisely, what did not happen) while the case was before Judge Messitte.

Like the Blumenthal case, DC & MD was brought against the President. In Blumenthal, the defendant was the President in his official capacity. What does that mean? It means the plaintiffs are suing the federal government in the name of the President. The President is only a nominal defendant—it is the state (i.e., the federal government) which is the actual defendant. Thus, the federal government is represented (exclusively) in court by the Department of Justice (“DOJ”). If the plaintiffs prevail in an official capacity action, their remedy lies against the government, not against the individual who happens to be President. By contrast, in DC & MD, the Plaintiffs sued the President in his official capacity and also in his individual capacity. I am sure it will not surprise you that the second defendant, the Individual Capacity Defendant, is: Donald J. Trump, the individual.

In DC & MD, the reality is that there are two defendants. As in Blumenthal, the Official Capacity Defendant is the federal government which is represented by the DOJ. By contrast, the Individual Capacity Defendant is Donald J. Trump (who happens to be President), and he is represented in the case by his private counsel (i.e., Consovoy McCarthy Park PLLC).

The DOJ filed a motion to dismiss. It was fully briefed—i.e., briefed between the DOJ and the Plaintiffs (and assorted amici—including yours truly*). Oral argument was scheduled on the DOJs motion to dismiss for June 11, 2018. Additionally, the Individual Capacity Defendant filed its own separate motion to dismiss. It was fully briefed by May 25, 2018—i.e., briefed between the Individual Capacity Defendant and the Plaintiffs (and assorted amici—including yours truly). The Individual Capacity Defendant asked for permission to participate in the June 11, 2018 oral argument. Judge Messitte refused the Individual Capacity Defendant’s request—however, he did promise that he would hold a separate oral argument on the second motion. That was an odd and unexpected decision. Judicial efficiency would have seemed to have called for a single hearing on the two closely related motions. But even if it was a waste to hold separate hearings—such a decision is not unfair. The President was promised his day in court on his own separate motion. Move along—nothing to see here!

What happened next? Judge Messitte is a prompt judge. He issued a decision, less than two months later, on July 25, 2018, on the DOJ’s motion to dismiss in the official capacity action. (The DOJ’s motion was denied.) That left Trump’s individual capacity motion unresolved. The target deadline for deciding such a motion is either: to call for a hearing or to decide the motion within 6 months after the close of briefing. So a hearing or a decision on the President’s individual capacity motion was due by November 25, 2018.

November 25, 2018 came and went. Judge Messitte did not call for a hearing, and he did not decide the motion on the papers by the deadline. (And, yes, the President’s motion to dismiss in his individual capacity remains undecided.) Here is the kicker: Judge Messitte (like Judge Sullivan in Blumenthal) is a prompt judge. If you look at the last judicial report listing motions which remain unresolved beyond the 6-month deadline, you will see that Judge Messitte only has one such motion—and it is not really late because a full trial was scheduled on the matter. See CJRA Report March 2018 <https://www.uscourts.gov/sites/default/files/cjra_8_0331.2018.pdf>.

Hundreds and thousands of actions go through the federal courts promptly—Judge Messitte and Judge Sullivan are dedicated judges who do not regularly let motions grow stale beyond the standard 6-month target deadline. So why cannot the President get his motions decided in a timely way just like any other litigant in the federal courts? It is all so difficult to understand.**

Seth

Welcome Instapundit Readers!

Seth Barrett Tillman, Part III: The Mystery of DC & MD v Trump, New Reform Club (Mar. 10, 2019, 7:13 AM), <https://reformclub.blogspot.com/2019/03/part-iii-mystery-of-dc-md-v-trump.html>. 

Seth Barrett Tillman, Part II: The Mystery of Senator Richard Blumenthal v. President Donald J TrumpNew Reform Club (Mar. 8, 2019, 1:38 AM), <https://reformclub.blogspot.com/2019/03/part-ii-mystery-of-senator-richard.html>. 

For Part I, see: Seth Barrett Tillman, The Mystery of Blumenthal v. Trump, New Reform Club (Mar. 7, 2019, 2:16 AM), <https://reformclub.blogspot.com/2019/03/the-mystery-of-blumenthal-v-trump.html>. 

*I had several filings in this matter. See generally Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of Neither Party with Respect to Motion to Dismiss on Behalf of Defendant in his Individual Capacity, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, and in his individual capacity, Civ. A. No. 8:17-cv-01596-PJM (D. Md. May 8, 2018) (Messitte, J.), ECF No. 114, 2018 WL 2159867, 2018 U.S. Dist. Ct. Motions LEXIS 32, <https://ssrn.com/abstract=3174268>, <https://www.scribd.com/document/378704459/DC-and-Maryland-v-Trump-Amicus-brief-of-Seth-Barrett-Tillman-in-Support-of-Neither-Party-with-Respect-to-Individual-Capacity-Motion-to-Dismiss>;


Letter Brief filing Supplemental Authority, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Mar. 19, 2018) (Messitte, J.), ECF No. 97, <https://www.scribd.com/document/374271648/D-C-and-Maryland-v-Trump-Notice-of-Supplemental-Authority-3-19-18>, <https://ssrn.com/abstract=3141732>;

Letter Brief, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, Seeking an Order in regard to Plaintiffs’ Motion to Amend the Complaint, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Jan. 29, 2018) (Messitte, J.), ECF No. 88, 2018 WL 1128948, <https://www.scribd.com/document/370301834/Maryland-v-Trump-Correspondence-1-29-18>, <https://ssrn.com/abstract=3112896>;

Corrected Response [Brief] of Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Dec. 31, 2017) (Messitte, J.), ECF No. 77, 2017 WL 6880026, 2017 U.S. Dist. Ct. Motions LEXIS 466, <https://ssrn.com/abstract=3089868>;

Motion and Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Oct. 6, 2017) (Messitte, J.), ECF No. 27-1, 2017 WL 4685826, 2017 U.S. Dist. Ct. Briefs LEXIS 410, <https://ssrn.com/abstract=2996355>.

** But cf. Jed Shugerman, The Supreme Court Could Take a Lesson From the Emoluments Judge, Slate (Apr. 2, 2018, 5:07 PM), <https://slate.com/news-and-politics/2018/04/the-supreme-court-could-take-a-lesson-from-the-emoluments-judge.html> (characterizing Judge Messitte’s decisions in this matter as “hav[ing] the courage to enforce the Constitution” (emphasis added)). 


Friday, March 08, 2019

Part II: The Mystery of Senator Richard Blumenthal v. President Donald J Trump


Yesterday, I explained that Judge Sullivan’s decision on the Department of Justice’s motion to dismiss the Emoluments Clause case against the President was due circa December 7, 2018. See <https://reformclub.blogspot.com/2019/03/the-mystery-of-blumenthal-v-trump.html>. Judge Sullivan’s decision is now more than 3 months overdue.

According to the Judiciary’s biannual reports*:
Judge Sullivan had zero overdue motions at the end of March 2018;** and,
Judge Sullivan had zero overdue motions at the end of September 2017 and at the end of March 2017; and,
Judge Sullivan had zero overdue motions at the end of September 2016 and at the end of March 2016; and,
Judge Sullivan had zero overdue motions at the end of September 2015 and at the end of March 2015; and, finally,
Judge Sullivan had zero overdue motions at the end of September 2014.
In short, Judge Sullivan has not had a (reported) overdue motion in any of his cases for over 3 years—yet, the President’s motion remains undecided. Does anyone know why? 

Seth

Welcome Instapundit readers!

* See CJRA 8: U.S. District CourtsMotions Pending More Than Six Months March 2018, <https://www.uscourts.gov/sites/default/files/cjra_8_0331.2018.pdf> (no motions pending more than 6 months);  September 2017 CJRA Report, <https://www.uscourts.gov/sites/default/files/cjra_8_0930.2017.pdf> (same); March 2017 CJRA Report, <https://www.uscourts.gov/sites/default/files/cjra_8_0331.2017_0.pdf> (same);  September 2016 CJRA Report, <https://www.uscourts.gov/sites/default/files/data_tables/cjra_8_0930.2016.pdf> (same); March 2016 CJRA Report, <https://www.uscourts.gov/sites/default/files/cjra.8.0331.2016.pdf> (same);  September 2015 CJRA Report, <https://www.uscourts.gov/sites/default/files/cjra_table_8.pdf> (same); March 2015 CJRA Report, <https://www.uscourts.gov/sites/default/files/cjra_table_8w_-_list_of_pending_motions_by_judge_03312015.pdf> (same);  September 2014 CJRA Report, <https://www.uscourts.gov/sites/default/files/cjra-table8-sep2014.pdf> (same). 


** The September 2018 CJRA report will be available circa May 2019. 

Seth Barrett Tillman, Part II: The Mystery of Senator Richard Blumenthal v. President Donald J Trump, New Reform Club (Mar. 8, 2019, 1:38 AM), <https://reformclub.blogspot.com/2019/03/part-ii-mystery-of-senator-richard.html>. 

For Part I, see: Seth Barrett Tillman, The Mystery of Blumenthal v. TrumpNew Reform Club (Mar. 7, 2019, 2:16 AM), <https://reformclub.blogspot.com/2019/03/the-mystery-of-blumenthal-v-trump.html>. 



Thursday, March 07, 2019

The Mystery of Blumenthal v. Trump




Blumenthal v. Trump, Civ. A. No. 1:17-cv-01154-EGS (D.D.C. filed 2017), is one of three Emoluments-Clauses-related actions filed against President Trump. The initial Blumenthal complaint was filed on June 14, 2017 in the federal district court for the District of Columbia. The case was assigned to Judge Emmet G. Sullivan. The action was brought by scores of Democratic representatives and senators. It was brought against the President in his official capacity, and so, the President is represented exclusively by the Department of Justice (DOJ).

An amended complaint, the now operative complaint, was filed on August 15, 2017. The DOJ filed a motion to dismiss. It was fully briefed by the parties. There was briefing by assorted amici (including yours truly*). And the court ordered supplemental briefing from the parties responding to amici.

Oral argument on the motion was heard on June 7, 2018.

The court gave a preliminary ruling on the issue of standing, but left all other threshold issues unresolved.** [In parallel litigation in the Southern District of New York (now on appeal in the Second Circuit), the judge held that the parties lacked standing. See CREW v. Trump, Civ. A. No. 1:17-cv-00458-GBD, 2017 WL 6524851, 2017 U.S. Dist. LEXIS 210326, 276 F. Supp. 3d 174 (S.D.N.Y. Dec. 21, 2017) (Daniels, J.), notice of appeal filed on Feb. 16, 2018.] In other words, in the District of Columbia action, Judge Sullivan’s standing-only ruling did not dispose of the DOJ’s motion to dismiss. The customary or target deadline for resolving such a motion is 6 months—i.e., the 6-month target to resolve the DOJ’s motion to dismiss was December 7, 2018. December 7 has come and gone. We are now 3 months post-deadline. There has been no call by the court for further clarification, renewed briefing, or renewed oral argument. Yet the DOJ’s motion to dismiss remains unresolved.

Why?
Why the delay?
Where is the decision?
What is going on?

The last published report, as of March 2018, listing federal judges (and how many of their motions are overduei.e., beyond the 6 month target) shows that Judge Sullivan had no such outstanding motions.*** So why does this motion remain undecided? 

For what it is worth, there is parallel litigation against the President in the Fourth Circuit and Second Circuit. Oral argument in the Fourth Circuit case is scheduled for March 19, 2019, 9:30 AM, in Richmond. The oral argument in the Second Circuit case was on October 30, 2018. It follows that a Second Circuit decision is due circa April 30, 2019. I find it difficult to imagine that Judge Sullivan, in the District of Columbia action, is waiting for guidance from the Second and Fourth Circuits. Those decisions are not due for months. But if the delay is not for that reason, why is there any delay at all?

Seth

Welcome Instapundit readers!


See Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, Senator Richard Blumenthal v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-01154-EGS (D.D.C. Sept. 19, 2017) (Sullivan, J.), ECF No. 16-1 (redocketed at ECF No. 40), 2017 WL 4230605, 2017 U.S. Dist. Ct. Briefs LEXIS 30, <https://ssrn.com/abstract=2996384>; see also Motion for Leave of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project to be Heard at Oral Argument, Senator Richard Blumenthal v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-01154-EGS (D.D.C. May 21, 2018) (Sullivan, J.), ECF No. 52, 2018 WL 2321735, 2018 U.S. Dist. Ct. Motions LEXIS 46, <https://ssrn.com/abstract=3177824>.

** See Blumenthal v. Trump, Civ. A. No. 17-cv-1154-EGS, 2018 WL 4681001, 2018 U.S. Dist. LEXIS 167411, 335 F. Supp. 3d 45 (D.D.C. Sept. 28, 2018) (Sullivan, J.), ECF No. 59, <https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2017cv1154-59>. In parallel litigation in the Southern District of New York (now on appeal in the Second Circuit), the judge held that the parties lacked standing. See CREW v. Trump, Civ. A. No. 1:17-cv-00458-GBD, 2017 WL 6524851, 2017 U.S. Dist. LEXIS 210326, 276 F. Supp. 3d 174 (S.D.N.Y. Dec. 21, 2017) (Daniels, J.), notice of appeal filed on Feb. 16, 2018, <http://www.nysd.uscourts.gov/cases/show.php?db=special&id=595>
Seth Barrett Tillman, The Mystery of Blumenthal v. Trump, New Reform Club (Mar. 7, 2019, 2:16 AM), <https://reformclub.blogspot.com/2019/03/the-mystery-of-blumenthal-v-trump.html>. 

For Part II, see: Seth Barrett Tillman, Part II: The Mystery of Senator Richard Blumenthal v. President Donald J TrumpNew Reform Club (Mar. 8, 2019, 1:38 AM), <https://reformclub.blogspot.com/2019/03/part-ii-mystery-of-senator-richard.html>.