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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>.

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