re: Karl Racine, Brian Frosh, and Norman Eisen, We Sued Trump for Emoluments Violations. That Fight's Just Getting Started, Politico (February 8, 2021, 04:30 AM EST), <https://www.politico.com/news/magazine/2021/02/08/donald-trump-emoluments-presidential-corruption-466484>
The most significant claim made in Karl Racine, Brian Frosh, and Norman Eisen's article is now hopelessly out of date. And your readers should be made aware of this. Their article repeatedly states that Judge Messitte's trial court decisions, for the United States District Court for the District of Maryland, established the "law of the case" in regard to the Foreign Emoluments Clause, and that Judge Messitte's decisions are "still in force." Those trial court decisions were implicitly set aside by the Supreme Court on January 25, 2021, and they were expressly vacated by the Fourth Circuit on March 9, 2021. It is all there in black-and-white in the Fourth Circuit's order. See Order, App. No. 20-1839, 2021 U.S. App. LEXIS 6888, 2021 WL 913925 (4th Cir. Mar. 9, 2021), ECF No. 28 (4th Cir.), ECF No. 196 (D. Md.). On March 17, 2021, lawyers for Frosh, the Attorney General of Maryland, and for Racine, the Attorney General of the District of Columbia, sent a letter to the clerk of the Fourth Circuit seeking "guidance" in regard to the court's March 9 order. The clerk of the Fourth Circuit responded on March 25, 2021. The clerk's response, without any equivocation, stated: "[T]he [C]ourt [of Appeals] has asked me to advise you that the court has received your correspondence and that the orders entered March 9, 2021, will remain as written.”
After nearly 4 years of their repeated dilatory conduct over the course of this case, the two Attorneys General have nothing to show for their titanic waste of government and private resources, including federal judicial resources--all done for raw political purposes. They accomplished nothing. They never succeeded in getting a final judgement against former President Trump. They never succeeded even in getting any discovery against the former president.
Interestingly, the Attorneys General brought two claims against former President Trump: an "official capacity" claim and an "individual capacity" claim. The former was moot once Trump was out of office. But the status of the latter claim was unclear. For reasons they have never explained the Attorneys General dropped both claims. They could have continued to litigate the individual capacity claim, but they chose not to do so. And, now, after nearly 4 years of litigation, they have nothing to show their fellow citizens, voters, and taxpayers for all the money, effort, and resources their offices used in this litigation. Their article in 'Politico' argued that their victory was establishing the law of the case as a precedent for future use. But ALL the binding appellate precedent has been vacated. And ALL the District Court decisions--which are only persuasive precedent--were expressly vacated on March 9, 2021. If this counts as victory, what would be defeat?
The two Attorneys General achieved nothing substantive. What they did achieve relates only to photo opportunities and political fund raising. They occupied the time of four courts and, in doing so, delayed the meritorious litigation of countless citizens and taxpayers while they went after their great white whale: former President Trump. But the fact is: Attorney General Frosh and Attorney General Racine should have taken a lesson from Captain Ahab.
Seth Barrett Tillman, A Letter to Politico, New Reform Club (Mar. 26, 2021, 10:05 AM), <https://reformclub.blogspot.com/2021/03/a-letter-to-politico.html>;