Letter to the Editor at The Atlantic, Responding to Jane Chong’s The Justice Department Has Had to Twist Itself in Knots to Defend Trump on Emoluments

Letter to the Editor

<letters@theatlantic.com>

May 27, 2020

Re:    Jane Chong, The Justice Department Has Had to Twist Itself in Knots to Defend Trump on Emoluments, The Atlantic’s Battle for the Constitution (May 26, 2020), <https://tinyurl.com/y8lz42vc>.

Ms Jane Chong wrote:

In general, such cases [about the President’s finances] are properly handled by the president’s personal lawyers—not by the Justice Department…. Yet since the first year of Donald Trump’s presidency, the Justice Department has defended him against three federal anti-corruption lawsuits filed in New York, D.C., and Maryland.

Ms Chong’s analysis is not correct. In each of the three lawsuits she refers to, the plaintiffs chose to sue the President in his official capacity (as opposed to in his individual capacity). What that means is that the plaintiffs were suing the United States, and not Donald J Trump. In all such lawsuits, the Department of Justice represents, and must represent, and only purports to represent, the actual defendant, i.e., the United States, and not Donald J Trump. Simply put, the President cannot displace Department of Justice counsel, much less substitute his own private counsel (even at his own expense) for Department of Justice counsel. Ms Chong errs in suggesting that the Department of Justice has “defended” Trump. It never has; rather, the Justice Department has defended its client: the United States.

The reason the Department of Justice is participating is only because the plaintiffs chose to sue the United States (in the name of the President). Plaintiffs knew precisely what the consequences of their decision—to bring an official capacity claim—would be. They chose to sue the President in his official capacity, and it appears that they did so for prudential and tactical reasons.

By contrast, in the Maryland-based lawsuit, the plaintiffs sued the President in his official capacity and in his individual capacity. The latter claim is against Trump, and he has been represented by private counsel, which I expect he is paying for out-of-pocket—much like President Clinton did when he was sued individually by Ms Jones in Clinton v. Jones. It is noteworthy that, well over a year ago, the plaintiffs voluntarily dismissed their individual capacity claim, which was the only such claim against Trump.

If Ms Chong would like to see Justice Department out of these cases, and Trump represented by his own private counsel, then she should direct her request to the plaintiffs. It is they who have engineered this situation.

Seth Barrett Tillman

(Tillman has filed multiple amicus briefs in the 3 Emoluments Clauses cases—most of his briefs have suppored the defendants.)

Seth Barrett Tillman, Submitted as a Letter to the Editor at The Atlantic, Responding to Jane Chong’s The Justice Department Has Had to Twist Itself in Knots to Defend Trump on Emoluments, New Reform Club (May 27, 2020, 2:36 PM), <https://reformclub.blogspot.com/2020/05/letter-to-editor-responding-to-jane.html>.