An Interview on Current Litigation Involving the Domestic (Presidential) Emoluments Clause

An extract from: Maclin Conlin, Interview, ‘An Exploration of the Original Public Meaning of the Domestic (Presidential) Emoluments Clause: A Conversation with Professor Seth Barrett Tillman,’ The Lemur: Duke’s Big Ideas Magazine (Oct. 6, 2026), <https://thelemur.org/2026/10/06/an-exploration-of-the-original-public-meaning-of-the-domestic-presidential-emoluments-clause/>, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7568858>.

MC: Does Florida’s transfer of land fall within the original public meaning of an “emolument”?

SBT: The final argument in my brief is that the land transfer at issue is not an emolument anyway. This issue, that is, What is an “emolument”?, was litigated in the three Emoluments Clauses cases that were brought during the first Trump administration, and at least two of the courts were friendly to the position that just about any benefit a President might receive is an emolument. I think those courts were wrong, and they did not provide much reasoning on this point; furthermore, these cases were not decided in the Eleventh Circuit, and they were not decided by the Southern District of Florida, much less by the Supreme Court, so I do not really think it matters all that  much what these particular district courts and intermediate courts of appeals had to say. Moreover, they are somewhat less than persuasive precedents, because each of these decisions, where a court adopted an expansive meaning for “emoluments,” was subsequently vacated (or reversed). For all these reasons, I do not think a judge in the Southern District of Florida is going to be greatly influenced by these prior cases particularly because the courts did not explain their rationales in any detail. As a matter of fact, the D.C. trial court simply said that it was persuaded by the position taken by the Maryland District Court. The D.C. trial court never really explained anything, except by saying that it had been persuaded by another court, so the only court of record that really decided this issue was the Maryland trial court. And although the en banc Fourth Circuit rejected President Trump’s petition for a writ of mandamus in that case, the Fourth Circuit never really reached this particular substantive issue. And, of course, as I explained, all these decisions were subsequently vacated (or reversed).

And that is where we are now. The reply brief is due to be filed in Florida on October 1, 2026.[1] There may be an oral argument. But there may be no oral argument—as the court may decide the motion to dismiss based on the briefs. That can happen. I do not think the questions in this case are particularly close, but sometimes a court will still grant oral argument to provide a party with the opportunity to clarify the points that they made in their written brief. One of the most surprising parts of this case for me has been the lack of amici on the plaintiffs’ side. This contrasts sharply with the first Trump administration, when there were about 24 amici across the three cases, and some of those briefs were joined by large groups of law professors. To date, only a single amicus brief, filed on behalf of a single individual, supports plaintiffs’ position.

Another somewhat surprising aspect of Plaintiffs’ case is that they have not asked either for a preliminary injunction or for an expedited briefing schedule in addition to the remedies that they have sought. The leisurely pace of federal litigation and judicial decision-making leads one to conclude that Sistrunk Seeds v. Trump, like the three Emoluments Clauses cases filed in 2017, will time out—as moot—with the expiration of the (second) Trump administration. And, perhaps, that is what plaintiffs wanted then (under Trump-45) and what they want now (under Trump-47)? A cynic might suggest that what plaintiffs actually wanted then and what Plaintiffs actually want now are photo and fundraising opportunities, discovery, and news stories illustrating to their donor base that they continue to fight the man, even if their cases are doomed to lose on standing, or in regard to other threshold issues, or on the merits. I certainly do not know if such a cynic would be correct in regard to Sistrunk Seeds v. Trump. Only the Plaintiffs and their lawyers would know the answer to that.

MC: Professor Tillman, thank you for your time.

SBT: Thank you for having me.

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[1] This interview was conducted on September 24, 2026. The reply brief in this case was filed on October 1, 2026. See generally Seth Barrett Tillman, Sistrunk Seeds v. Trump: The Docket, New Reform Club (Aug. 17, 2026, 4:33 AM), https://reformclub.blogspot.com/2026/08/sistrunk-seeds-v-trump-docket.html; Seth Barrett Tillman, Trump-47’s Presidential (Domestic) Emoluments Clause case: Sistrunk Seeds v. Trump, New Reform Club (Sept. 25, 2026, 5:48 AM), https://reformclub.blogspot.com/2026/09/trump-47s-presidential-domestic.html.

Seth Barrett Tillman, ‘An Interview on Current Litigation Involving the Domestic (Presidential) Emoluments Clause,’ New Reform Club (Oct. 6, 2026, 2:15 AM), <https://reformclub.blogspot.com/2026/10/an-interview-on-current-litigation.html>;