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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

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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>. 




2 comments:

Anonymous said...

It will happen closer to the 2020 election cycle.

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