Everything you say can and will be used against you.

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>.



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