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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)). 


1 comment:

Unknown said...

Perhaps because a decision against the President in his individual capacity would result in an immediate interlocutory appeal based on qualified immunity assuming that his private lawyers have raised that immunity or some other immunity that the President might have of which I am not familiar. An interlocutory appeal by the President in his individual capacity would have the effect that the denial of the request for certification had in the official capacity suit. And a favorite technique, despite your reference to this judge's promptness, of judges is simply to slip cases into the black hole of interim decision making. Although Writs of Procendendo are generally not favored because litigants fear they might cause an unfavorable judicial decision if there is an immunity argument available to the President in this case I would file that Writ in the Supreme Court, assuming the Supremes have original jurisdiction, as my state supreme court does.