October
6, 2019
The Washington
Post
Letter
to the Editor
letters@washpost.com
Re:
David A. Fahrenthold, Ann E. Marimow & Robert Barnes, Justice Department helps Trump fight financial probes, The Washington Post, Oct. 5, 2019, Sect.
A, page 5.
Dear
Letters Editor,
Your
October 6, 2019 article took the position that “federal [government] lawyers
have defended” Trump in the three Emoluments Clauses cases. That’s not quite
right.
In
two of these lawsuits, plaintiffs chose to sue the President exclusively in his
official capacity, not in his individual capacity. Such an
official-capacity only lawsuit is, in reality, a lawsuit against the government
of the United States. In other words, in both of these lawsuits, the President
is only a nominal defendant. Where, as here, the government is the actual
defendant, Department of Justice attorneys act for the government-defendant. In
these two lawsuits, President Trump’s personal attorneys cannot defend the President—for
the simple reason that Donald J. Trump, the individual, is not being sued. It
is that simple.
In
the third lawsuit, plaintiffs initially sued the President exclusively in his
official capacity, but later they amended their complaint to also sue the
President in his individual capacity. Subsequently, plaintiffs sought to unilaterally
and voluntarily dismiss their individual-capacity claim against the President. The
President’s personal attorney objected to any such dismissal: he wanted his day
in court.
Plaintiffs
would much rather litigate against the DOJ—an organization which is wholly
unconcerned with the President’s personal and political reputation—a reputation
which takes a pounding each and every time the DOJ loses a motion, trial, or appeal
even though President is not really the defendant and has no personal day-to-day
control over the DOJ and the government-defendant’s legal strategy (as he would
have if he were the actual defendant).
Seth
Barrett Tillman, Lecturer
Maynooth
University Department of Law, Ireland
Tillman, a U.S.
national, has filed multiple amicus briefs in the course of the three
Emoluments Clauses cases.
Seth Barrett Tillman, Why the DOJ Acts for the Defendant in the Emoluments Clauses Cases, New Reform Club (Oct. 9, 2019, 4:36 PM), <https://reformclub.blogspot.com/2019/10/why-doj-acts-for-defendant-in.html>.
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