Amicus Curiae Brief — Donald J. Trump, President of the United States, Petitioner v. Citizens for Responsibility and Ethics in Washington, et al.
Supreme Court briefOct 14, 2020
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No. 20-330
IN THE
SUPREME COURT OF THE UNITED STATES
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
PETITIONER
v.
CITIZENS FOR RESPONSIBILITY AND ETHICS IN
WASHINGTON, ET AL.,
RESPONDENTS
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Second
Circuit
Motion for Leave to File Brief and Brief for Scholar
Seth Barrett Tillman and the Judicial Education
Project as Amici Curiae Supporting Petitioner
ROBERT W. RAY
Counsel of Record
Zeichner Ellman & Krause LLP
1211 Avenue of the Americas, 40th Fl.
New York, New York 10036
(212) 826-5321
rray@zeklaw.com
JOSH BLACKMAN
1303 San Jacinto Street
Houston, TX 77002
202-294-9003
josh@joshblackman.com
JAN I. BERLAGE
Gohn Hankey & Berlage LLP
201 N. Charles Street, Suite 2101
Baltimore, Maryland 21201
(410) 752-1261
jberlage@ghsllp.com
CARRIE SEVERINO
Judicial Education Project
722 12th St., N.W., 4th Fl.
Washington, D.C. 20005
(571) 357-3134
carrie@judicialnetwork.com
October 14, 2020
Motion for Leave to File Brief as Amici Curiae
Supporting Petitioner
Amici curiae Scholar Seth Barrett Tillman and
the Judicial Education Project respectfully move for
leave to file a brief explaining why this Court should
grant certiorari to review the judgment of the United
States Court of Appeals for the Second Circuit.
Notice of intent to file this brief was provided to
Respondents on October 6, 2020, with less than ten
days’ notice. Respondents granted consent on
October 8, 2020, six days before the filing deadline.
Notice of intent to file this brief was provided to
Petitioner on October 8, 2020. The Petitioner has not
yet responded to the request. These requests were
untimely under Supreme Court Rule 37(a)(2).
Scholar Seth Barrett Tillman, an American
national, is a member of the regular full-time faculty
in the Maynooth University Department of Law,
Ireland. Tillman is one of a very small handful of
academics who has written extensively on the
Constitution’s “office”-language, including the
Foreign Emoluments Clause. Since 2008, Tillman
has consistently written that the Foreign
Emoluments Clause’s “Office . . . under” the United
States language does not encompass the presidency.
Tillman was also the first scholar to write that
Emoluments Clauses claims could not be brought
against President Trump in his official capacity.1
Seth Barrett Tillman, The Emoluments Clauses Lawsuits’s
Weak Link: The Official Capacity Issue, Yale J. of Reg. Notice &
Comment (Aug. 15, 2017), http://perma.cc/759Y-CC2R.
1
Tillman has taught equity and remedies for nine
academic years.
The Judicial Education Project (JEP) is dedicated
to strengthening liberty and justice through
defending the Constitution as envisioned by the
Framers. JEP educates citizens about these
constitutional principles and focuses on issues such
as the judiciary’s role in our democracy, how judges
interpret the Constitution, and the impact of court
rulings on the nation.
Amici curiae can provide the Court with
additional grounds on which the judgment below
should be reversed or vacated. Specifically, the
Respondents erred by suing the President in his
official capacity.
The Petitioner and Respondents would suffer no
prejudice if the Court permitted this brief to be filed,
particularly since the Respondents were granted a
60-day extension to file their responsive brief.
Therefore, Scholar Seth Barrett Tillman and the
Judicial Education Project respectfully request that
the Court permit this brief to be filed.
Respectfully submitted,
ROBERT W. RAY
Counsel of Record
Zeichner Ellman & Krause LLP
1211 Avenue of the Americas, 40th Fl.
New York, New York 10036
(212) 826-5321
rray@zeklaw.com
JOSH BLACKMAN
1303 San Jacinto Street
Houston, TX 77002
202-294-9003
josh@joshblackman.com
CARRIE SEVERINO
Judicial Education Project
722 12th St., N.W., 4th Fl.
Washington, D.C. 20005
(571) 357-3134
carrie@judicialnetwork.com
JAN I. BERLAGE
Gohn Hankey & Berlage LLP
201 N. Charles Street, Suite 2101
Baltimore, Maryland 21201
(410) 752-1261
jberlage@ghsllp.com
Questions Presented
The Court should grant certiorari and supplement
the question that the Petitioner presented with an
additional question:
Whether Plaintiffs lack standing because the
Defendant in his official capacity did not
cause, and therefore cannot redress, Plaintiffs’
alleged injuries?
i
Table of Contents
Questions Presented ................................................ i
Table of Authorities ............................................. iii
Interest of Amici Curiae ........................................ 1
Summary of Argument ........................................... 2
Argument .................................................................. 4
I.
The Constitution Can Generally be Violated
in Two Capacities. ................................................... 4
II. The Emoluments Clauses Can Be Violated in
Three Fashions. ....................................................... 7
III. Plaintiffs Lack Standing Because the
Defendant in His Official Capacity Did Not Cause,
and Therefore Cannot Redress, Plaintiffs’ Alleged
Injuries. ………………………………………………..10
IV. The Court Should Add a Supplemental
Question Presented, and Appoint an Amicus
Curiae to Argue That Plaintiffs Lack Standing to
Sue the President in His Official-Capacity. ......... 16
V. If This Case Becomes Moot, There Are
Several Grounds on Which the Court Should
Summarily Reverse or Vacate the Second Circuit’s
Judgment. .............................................................. 19
Conclusion .............................................................. 21
ii
Table of Authorities
Cases
Page(s)
Bishop v. Smith,
760 F.3d 1070 (10th Cir. 2014) .......................... 13
Cressman v. Thompson,
719 F.3d 1139 (10th Cir. 2013) .......................... 13
CREW v. Trump,
971 F.3d 102 (2d Cir. 2020) (denial of rehearing en
banc) ............................................................. passim
Hafer v. Melo,
502 U.S. 21 (1991) .......................................... 4, 11
In re Donald J. Trump (District of Columbia &
Maryland v. Trump),
958 F.3d 274 (4th Cir. 2020) (en banc) ....... ……. 21
Kentucky v. Graham,
473 U.S. 159 (1985) ...................................... 13, 14
Lewis v. Clarke,
137 S. Ct. 1285 (2017) .......................................... 5
Lewis v. Continental Bank Corp.,
494 U.S. 472 (1990) ............................................ 21
Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) ...................................... 12, 13
New York State Rifle & Pistol Ass’n, Inc. v. City of
New York,
140 S. Ct. 1525 (2020) ......................................... 20
iii
NFIB v. Sebelius,
567 U.S. 519 (2012) ............................................ 19
Okpalobi v. Foster,
244 F.3d 405 (5th Cir. 2001) (en banc) .............. 12
Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574 (1999) ............................................ 20
Sebelius v. Auburn Regional Medical Center,
568 U.S. 145 (2013) ............................................ 19
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,
549 U.S. 422 (2007) ............................................ 20
Trump v. Hawaii
138 S. Ct. 2392 (2018) ........................................ 21
Trump v. Mazars USA, LLP,
140 S. Ct. 2019 (2020) ........................................ 15
Trump v. Sierra Club,
140 S. Ct. 1 (2019) .............................................. 20
United States v. Windsor,
570 U.S. 744 (2013) ............................................ 19
Constitutional Provisions
U.S. Const. art. I, § 9, cl. 8 ........................................ 7
U.S. Const. art. II, § 1, cl. 7 ...................................... 8
Statutes and Rules
42 U.S.C. § 1983 ........................................................ 4
Sup. Ct. Rule 37 ......................................................... 1
iv
Other
Brief of Amici Curiae Scholar Seth Barrett Tillman
and Judicial Education Project in Support of
Defendant-Appellant, D.C. and Maryland v. Trump,
App. No. 20-1839 (4th Cir. filed Sept. 25, 2020),
App. ECF No. 16-1, https://bit.ly/34yQyLs......... 20
Brief of Scholars of Administrative Law,
Constitutional Law, and Federal Jurisdiction as
Amici Curiae in Support of the Plaintiffs, CREW v.
Trump, 276 F. Supp. 3d 174 (S.D.N.Y. 2017) (No.
1:17-cv-00458-GBD),
ECF. No. 64-1, https://bit.ly/36GgKGA .............. 18
Brief for Amici Curiae Scholars of Administrative
Law, Constitutional Law and Federal Jurisdiction in
Support of Appellants and Urging Reversal, CREW v.
Trump, 939 F.3d 131 (2d Cir. 2019) (No. 18-0474-cv),
App. ECF No. 40, https://bit.ly/3d7tZBk ............ 18
Brief for Scholar Seth Barrett Tillman and the
Judicial Education Project as Amici Curiae in
Support of Neither Party with Respect to Motion to
Dismiss on Behalf of Defendant in his Individual
Capacity, District of Columbia v. Donald J. Trump,
315 F. Supp. 3d 875 (D. Md. 2018) (No. 8:17-cv01596-PJM),
ECF
No.
114,
2018
WL
2159867,
http://bit.ly/2sb58Wn ................................. 17, 18
Brief for Scholar Seth Barrett Tillman and the
Judicial Education Project as Amici Curiae
Supporting Petitioner, In re Donald J. Trump
(District of Columbia v. Donald J. Trump),
Sup. Ct. No. 20-331 (U.S. filed Oct. 14, 2020)..... 7
v
Brief for Scholar Seth Barrett Tillman as Amicus
Curiae in Support of Defendant, CREW v. Trump,
276 F. Supp. 3d 174 (S.D.N.Y. 2017) (No. 1:17-cv00458-GBD),
ECF No. 37-1, https://bit.ly/3iDgCtN .............. 16
Josh Blackman & Seth Barrett Tillman, What is the
Plaintiffs’ Cause of Action in the Wall Litigation?
The Volokh Conspiracy (July 31, 2019),
https://perma.cc/F5Z2-VEDB .............................. 20
Laurence H. Tribe, How to Violate the Constitution
Without Really Trying: Lessons from the Repeal of
Prohibition to the Balanced Budget Amendment,
12 Const. Comm. 217, 220 (1995). ........................ 8
Motion for Leave to Amend Complaint, District of
Columbia v. Trump, 291 F. Supp. 3d 725 (D. Md.
2018) (Civ. A. No. 8:17-cv-01596-PJM),
ECF No. 90-1, https://bit.ly/30Xgsrl ................... 17
Plaintiffs’ Supplemental Memorandum, Blumenthal
v. Trump, 335 F. Supp. 3d 45 (D.D.C. 2018) (No.
1:17-cv-01154-EGS),
ECF No. 50, https://bit.ly/2Zxnbby .................... 4
President of the United States’ Statement of Interest,
District of Columbia v. Trump, 291 F. Supp. 3d 725
(D. Md. 2018) (No. 8:17-cv-01596-PJM),
ECF No. 100, https://bit.ly/2ZwxSuX ................ 11
Reply in Support of Motion to Dismiss, District of
Columbia v. Trump, 315 F. Supp. 3d 875 (D. Md.
2018) (No. 8:17-cv-01596-PJM),
ECF No. 118 ....................................................... 17
vi
Seth Barrett Tillman, Business Transactions and
President Trump’s “Emoluments” Problem,
40 Harv. J.L. & Pub. Pol’y 759 (2017) ............... 11
Seth Barrett Tillman, The Emoluments Clauses
Lawsuits’s Weak Link: The Official Capacity Issue,
Yale J. of Reg. Notice & Comment (Aug. 15, 2017),
http://perma.cc/759Y-CC2R .................................. 1
vii
Interest of Amici Curiae1
Scholar Seth Barrett Tillman, an American
national, is a member of the regular full-time faculty
in the Maynooth University Department of Law,
Ireland. Tillman is one of a very small handful of
academics who has written extensively on the
Constitution’s “office”-language, including the
Foreign Emoluments Clause. Since 2008, Tillman
has consistently written that the Foreign
Emoluments Clause’s “Office . . . under” the United
States language does not encompass the presidency.
Tillman was also the first scholar to write that
Emoluments Clauses claims could not be brought
against President Trump in his official capacity.2
Tillman has taught equity and remedies for nine
academic years.
The Judicial Education Project (JEP) is dedicated
to strengthening liberty and justice through
defending the Constitution as envisioned by the
Framers. JEP educates citizens about these
constitutional principles and focuses on issues such
as the judiciary’s role in our democracy, how judges
interpret the Constitution, and the impact of court
rulings on the nation.
1 Rule 37 statement: As noted in the motion for leave to file this
brief, timely notice of intent to file was not provided to the
parties. The Respondents consented. The Petitioner has not yet
responded to Amici’s request. No counsel for any party authored
any part of this brief and no person or entity other than amici
funded its preparation or submission.
2 Seth Barrett Tillman, The Emoluments Clauses Lawsuits’s
Weak Link: The Official Capacity Issue, Yale J. of Reg. Notice &
Comment (Aug. 15, 2017), http://perma.cc/759Y-CC2R.
1
Summary of Argument
For two reasons, this lawsuit takes a “form . . .
which has never been seen before: the officialcapacity-but-private-conduct suit.”3 First, Plaintiffs
sued President Trump exclusively in his official
capacity. But they have not alleged that Donald J.
Trump’s conduct as President has violated the
Constitution. Plaintiffs have not alleged that the
President violated the Constitution pursuant to any
government policy or custom. Nor could they make
such a showing. At most, Plaintiffs have complained
of quintessentially personal conduct taken by Donald
J. Trump and by Trump-affiliated private
commercial entities. Here, the federal government
did not cause the purported violation of the
Constitution.
Second, even if Plaintiffs’ suit were successful in
establishing liability, any judicial remedy could only
run against the federal government or the office of
the President. But that order cannot control Donald
J. Trump’s personal conduct. Nor could that order
enjoin the conduct of Trump-affiliated private
commercial entities, which are not parties to this
lawsuit. In short, a judicial order in this case could
run against the federal government or the office of
the President, but could not run against Donald J.
Trump personally. For this reason, Plaintiffs have
failed to demonstrate that their purported injuries
could be redressed by a favorable judicial decision.
These two errors demonstrate why Plaintiffs lack
Article III standing. The President in his official
3 CREW v. Trump, 971 F.3d 102, 115 (2d Cir. 2020) (Menashi,
J., dissenting from the denial of rehearing en banc).
2
capacity did not cause Plaintiffs’ alleged injuries.
And a judicial remedy against the Official-Capacity
Defendant cannot possibly redress Plaintiffs’ alleged
injuries. For these reasons, Plaintiffs cannot satisfy
the causation and redressability elements of Article
III standing.
Plaintiffs should have sued Donald J. Trump
personally. And Plaintiffs’ failure to sue Trump
personally was not a mere technical pleading error.
Plaintiffs have sued the wrong defendant. These
jurisdictional defects warrant reversing the Second
Circuit’s decision.
Nevertheless, the Solicitor General has not asked
the Court to address whether Plaintiffs had standing
to sue the President in his official capacity. The
Petitioner and Respondents agree on this
jurisdictional issue. Therefore, to assure itself of
jurisdiction, the Court should add a supplemental
question presented:
“Whether Plaintiffs lack standing because the
Defendant in his official capacity did not
cause, and therefore cannot redress, Plaintiffs’
alleged injuries.”
In light of the parties’ lack of adversity, the Court
should appoint an amicus curiae to argue that
Plaintiffs lack standing to sue the President in his
official capacity.
Finally, this petition may become moot for one
reason or another. If this case becomes moot, there
are several grounds on which the Court should
summarily reverse or vacate the decision below.
3
Argument
I. The Constitution Can Generally be Violated
in Two Capacities.
Generally, government officers can violate the
Constitution in two capacities. First, a government
officer violates the Constitution in his official
capacity if, and only if, a government “‘policy or
custom’ . . . played a part in the violation of federal
law.”4 With an official-capacity case, the named
defendant is a nominal placeholder. The suit, in fact,
lies against the government entity that adopted the
policy or custom.
Second, a government officer violates the
Constitution in his individual capacity if the officer
was acting under the color of law, but was not acting
pursuant to a government policy or custom.5 The
distinction between an official-capacity suit and an
individual-capacity suit does not turn on the remedy
sought.6
Consider two hypotheticals to illustrate the
distinction between an official-capacity claim and an
individual-capacity claim. First, a prison adopts an
official policy that requires prison guards to open and
read all mail between prisoners and their attorneys.
4 Hafer v. Melo, 502 U.S. 21, 25 (1991) (citations omitted).
5 Id. See 42 U.S.C. § 1983.
But see Plaintiffs’ Supplemental Memorandum at 33,
Blumenthal v. Trump, 335 F. Supp. 3d 45 (D.D.C. 2018) (No.
1:17-cv-01154-EGS), ECF No. 50, https://bit.ly/2Zxnbby (“Quite
simply, whether a suit is an official- or personal-capacity suit
turns on the nature of the relief sought: a suit seeking
injunctive or declaratory relief, rather than monetary damages,
is always an official-capacity suit.”). The Blumenthal plaintiffs
were entirely incorrect.
6
4
A prison guard, following that policy, reads a
prisoner’s privileged correspondences. Such a policy
would be patently unconstitutional. And the prisoner
could sue the prison guard and warden for violating
his civil rights pursuant to an official, albeit
unconstitutional, government policy. In this
hypothetical official-capacity suit, the prison guard
and warden are nominal defendants. And the suit
would continue even if the prison guard and warden
were no longer employed by the prison. The court
would simply substitute their successors’ names onto
the caption, so long as the prison continues to follow
the illegal custom or policy. In an official capacity
case, the actual and only defendant is the
government entity—that is, the prison.7 And any
judicial remedy would run against the prison. For
example, an injunction would preclude the prison
from prospectively enforcing its unconstitutional
policy.
In the second hypothetical, a prison guard
wrongfully unseals and reads a prisoner’s privileged
mail. He does so while working in the prison
mailroom, where he had lawful access to unopened
correspondences. The guard’s decision to open and
read the prisoner’s mail was his own initiative,
absent any government policy or custom. Indeed, the
See Lewis v. Clarke, 137 S. Ct. 1285, 1292 (2017) (“The
distinction between individual- and official-capacity suits is
paramount here. In an official-capacity claim, the relief sought
is only nominally against the official and in fact is against the
official’s office and thus the sovereign itself. This is why, when
officials sued in their official capacities leave office, their
successors automatically assume their role in the litigation. The
real party in interest is the government entity, not the named
official.” (citations omitted)).
7
5
prison policy expressly prohibited guards from
reading privileged mail. In this hypothetical suit, the
prisoner could sue the guard in his individual
capacity. Why? Because the guard acted under the
color of law. The guard violated the prisoner’s civil
rights while he was wearing a prison guard uniform,
and while he was on duty as a prison employee.
Moreover, his government employment provided him
with lawful access to the prison mail room. Finally,
the guard had apparent authority to intercept the
mail. Here, any judicial remedy would run against
the prison guard. A court could award damages. The
individual-capacity suit could proceed against the
guard even if he resigned from prison service. This
suit would be the quintessential individual capacity
claim.
These two hypotheticals illustrate the two
capacities in which government officers are generally
sued. But there is a third, less common way in which
a government officer can be sued: he can be sued
personally. Consider a third hypothetical: a prison
guard broke into the law offices of the prisoner’s
attorney while the guard was off-duty and out of
uniform. The guard then opened and read the
prisoner’s privileged correspondences. The prisoner
was injured in the same way as the prisoners were in
the two prior hypotheticals. Such conduct is tortious,
and, perhaps, criminal. But this conduct would not
support a cognizable federal civil rights claim. The
wrong was not performed pursuant to a government
policy or custom. Therefore, the prisoner could not
sue the guard in his official capacity. Likewise, the
guard did not act under the color of law. Therefore,
the prisoner could not sue the guard in his individual
capacity.
6
In this third hypothetical, the guard’s conduct
was no different from the actions of a private
tortfeasor, who lacked any connection to the
government. Indeed, no government conduct is at
issue. Given these facts, the prisoner could not bring
a civil rights lawsuit. In theory, the prisoner could
sue the guard personally for the guard’s private
conduct. But such a lawsuit would only be viable if
state or federal law created a cause of action. In the
absence of an express or implied cause of action, the
prisoner would be out of luck.
II. The Emoluments Clauses Can Be Violated in
Three Fashions.
There are two constitutional provisions at issue in
this appeal. First, the Foreign Emoluments Clause
provides that “no Person holding any Office of Profit
or Trust under them [the United States], shall,
without the Consent of the Congress, accept of any
present, Emolument, Office, or Title, of any kind
whatever, from any King, Prince, or foreign State.”8
The constitutional tort is the wrongful “accept[ance]”
of a proscribed “present, Emolument, Office, or Title”
by a person holding an “office . . . under [the United
States].”9 Second, the Domestic Emoluments Clause
8 U.S. Const. art. I, § 9, cl. 8 (emphasis added).
Amici contend that that the President is not subject to the
Foreign Emoluments Clause. See Brief for Scholar Seth Barrett
Tillman and the Judicial Education Project as Amici Curiae
Supporting Petitioner, In re Donald J. Trump (District of
Columbia v. Donald J. Trump), Sup. Ct. No. 20-331 (U.S. filed
Oct. 14, 2020). The Second Circuit did not reach this issue. In
the Second Circuit en banc proceedings below, Judge Menashi
only “assum[ed]” that the President “may” be subject to the
9
7
provides that “[t]he President . . . shall not receive
within that Period any other Emolument from the
United States, or any of them.”10 Here, the
constitutional tort is the wrongful “recei[pt]” of a
proscribed
“Emolument”
from
the
federal
government or from a state by the President. These
two provisions can be violated in three separate
fashions: (1) official capacity, (2) individual capacity,
and (3) personally.11
Here, we will consider three hypotheticals based
on the Foreign Emoluments Clause. (In this analysis,
Amici assume that such claims are otherwise
justiciable, and Plaintiffs have a valid cause of
action.12) First, the State Department established a
policy that requires ambassadors to accept foreign
state gifts without seeking congressional consent.
This policy would be patently unconstitutional. An
ambassador who follows the policy, and accepts a
Foreign Emoluments Clause. CREW v. Trump, 971 F.3d 102,
111 n.16 (2d Cir. 2020) (Menashi, J., dissenting from the denial
of rehearing en banc) (“arguing [the Foreign Emoluments
Clause] does not [apply to the President]” (citing Brief of Amici
Curiae Scholar Seth Barrett Tillman and the Judicial
Education Project in Support of Defendant-Appellee at 16–25,
CREW v. Trump, 939 F.3d 131 (2d Cir. 2019) (No. 18-0474-cv),
App. ECF No. 135, https://bit.ly/2X1kFZv)).
10 U.S. Const. art. II, § 1, cl. 7 (emphasis added).
11 The Thirteenth and Nineteenth Amendments also regulate
private conduct. See Laurence H. Tribe, How to Violate the
Constitution Without Really Trying: Lessons from the Repeal of
Prohibition to the Balanced Budget Amendment, 12 Const.
Comm. 217, 220 (1995). Therefore, these two provisions can be
violated by a defendant personally, and in his official capacity
or individual capacity.
12 Amici contend that the President is not subject to the Foreign
Emoluments Clause. See supra note 9.
8
foreign state gift on his own behalf, would be
following the announced State Department policy.
But in doing so, he would also violate the Foreign
Emoluments Clause in his official capacity. A
plaintiff with standing and a cause of action could
sue the ambassador in his official capacity. In that
suit, the ambassador would be the nominal plaintiff,
but the real party in interest would be the State
Department, which had adopted the unconstitutional
policy. And any judicial remedy would enjoin the
State Department from prospectively enforcing its
unconstitutional government policy.
In the second hypothetical, the State Department
has not adopted any policy or custom that requires
staff to accept foreign state gifts. However, an
ambassador decides to accept a foreign state’s gift.
While on duty, he tells a foreign government via
official diplomatic communications on government
stationery that he will accept a particular, expensive
diplomatic state gift. In accepting the gift, the
ambassador directs the foreign state to place the gift
on the mantle of his diplomatic residence, which is
owned by the federal government.
Here, the ambassador did not violate the Foreign
Emoluments Clause pursuant to any government
policy or custom. But the ambassador committed the
constitutional tort under the color of law: he
“accept[ed]” the prohibited foreign gift through the
use of his apparent authority and used government
property to do so: his diplomatic residence. As a
result, the ambassador would have violated the
Foreign Emoluments Clause in his individual
capacity. A plaintiff with standing and a cause of
action could sue the ambassador in his individual
9
capacity. The offending ambassador would be the
actual defendant, rather than the State Department.
The State Department had not adopted any policy or
custom that led to this constitutional violation. And
any judicial remedy would run against the
ambassador alone, even if he left federal service.
There is a third fashion in which the ambassador
could violate the Foreign Emoluments Clause. Let’s
assume that the King of Blackacre is a good friend of
an American citizen. Later, that American is
appointed as the ambassador to Blackacre. The King
then gives that ambassador an expensive state gift,
in light of the goodwill the two men had shared prior
to the ambassador’s appointment. And the
ambassador personally accepts that gift, without
making use of any apparent authority or government
property.
Here, the ambassador did not accept the gift
pursuant to a State Department policy or custom.
Thus, an official capacity case is not possible.
Moreover, the ambassador did not accept the gift
under the color of law. Therefore, an individual
capacity case is not possible. At most, a plaintiff with
standing and a cause of action could bring a suit
personally against the ambassador for violating the
Foreign Emoluments Clause.
III. Plaintiffs Lack Standing Because the
Defendant in His Official Capacity Did Not
Cause, and Therefore Cannot Redress,
Plaintiffs’ Alleged Injuries.
10
Plaintiffs in this case, and in parallel litigation,
have alleged that President Trump violated the
Foreign and Domestic Emoluments Clause in his
official capacity. But Plaintiffs cannot show that a
government “‘policy or custom’ must have played a
part in the violation of federal law.”13 The President
is not similarly situated to the ambassador who
accepts a foreign gift pursuant to an official State
Department policy. Nor is the President similarly
situated to the ambassador who accepts foreign gifts
under the color of law. Rather, the President is a
passive recipient of distributions from Trumpaffiliated private commercial entities, which,
Plaintiffs
allege,
are
conducting
business
transactions with foreign and domestic governments
and their instrumentalities.14 Even accepting
Plaintiffs’ account, no government conduct is at
issue. The mere fact that the President indirectly
accepted purported emoluments during his term in
office, does not make those acts, ipso facto,
government conduct, much less government conduct
taken pursuant to a government policy or custom.
The Department of Justice (“DOJ”) contended
that the Domestic Emoluments Clause does “not
apply to the President as a private individual.”15 If
the DOJ’s analysis were correct, then the President
Hafer v. Melo, 502 U.S. 21, 25 (1991) (emphasis added)
(citations omitted).
14 Seth Barrett Tillman, Business Transactions and President
Trump’s “Emoluments” Problem, 40 Harv. J.L. & Pub. Pol’y 759,
765 n.18 (2017).
15 President of the United States’ Statement of Interest at 1,
District of Columbia v. Trump, 291 F. Supp. 3d 725 (D. Md.
2018)
(No.
8:17-cv-01596-PJM),
ECF
No.
100,
https://bit.ly/2ZwxSuX.
13
11
could escape the limitations of the Domestic
Emoluments Clause by quietly accepting prohibited
emoluments on his own, without relying on apparent
authority or government property. However, the
DOJ’s analysis is not correct: A President can violate
the Constitution even through his purely personal
conduct. The Domestic Emoluments Clause applies
to the President at all times during his tenure and in
all capacities. Nevertheless, the fashion in which he
receives the purportedly proscribed emoluments
dictates the nature of a plaintiff’s suit: official
capacity, individual capacity, or a suit personally
against the defendant. Official capacity and
individual capacity claims are not the only options;
they are not two sides of the same coin.
Plaintiffs’ decision to sue the President
exclusively in his official capacity denies them
standing for two reasons. First, assuming that there
is an “injury in fact,” Plaintiffs have failed to show
that there is a “causal connection between the injury
and the conduct complained of” by the defendant
they chose to sue.16 Specifically, the “[P]laintiffs have
never suggested that any act of” President Trump in
his official capacity—the only named Defendant in
this case—“has caused, will cause, or could possibly
cause any injury to them.”17 They have only
challenged Donald J. Trump’s quintessentially
private conduct, as well as actions taken by Trumpaffiliated private commercial entities. Given the
factual allegations put forward in Plaintiffs’ Second
Amended Complaint, the only actions that could
16 See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
17 See Okpalobi v. Foster, 244 F.3d 405, 426 (5th Cir. 2001) (en
banc).
12
cause Plaintiffs’ purported injuries were taken by
Trump personally or by those Trump-affiliated
private commercial entities.
Second, Plaintiffs have failed to demonstrate that
their injuries could be “‘redressed by a favorable
decision.’”18 Indeed, based on the facts alleged in the
Second Amended Complaint, it will be impossible for
Plaintiffs’ purported injuries to be “redressed by a
favorable decision.” Why? The District Court lacks
the power to issue a judgment against the defendant
in his private capacity.19 Plaintiffs did not include as
defendants in this case Donald J. Trump, the private
individual, and Trump-affiliated private commercial
entities. Therefore, any possible remedy could not
run against them. A plaintiff lacks standing where
the district court cannot “order [the defendant] to do
anything in her official capacity to redress [the
plaintiff’s] alleged injuries.”20
In this case, the only named defendant is the
President in his official capacity—that is, the United
States as sovereign. As a result, the District Court
would only have jurisdiction to issue a judgment
against the government, the sovereign, its policies,
and its property. The District Court would not have
jurisdiction to issue a judgment against Trump’s
property. Based on the factual allegations in the
18 Lujan, 504 U.S. at 561 (citations omitted).
See also Kentucky v. Graham, 473 U.S. 159, 167 (1985)
(explaining that “a suit against a government official in his or
her personal capacity cannot lead to imposition of fee liability
upon the governmental entity”).
20 Bishop v. Smith, 760 F.3d 1070, 1089 (10th Cir. 2014)
(quoting Cressman v. Thompson, 719 F.3d 1139, 1147 (10th Cir.
2013)).
19
13
Second Amended Complaint, any relief that might
actually redress Plaintiffs’ claims, should it be
granted, must run against Trump qua the individual,
and his property. The District Court would be
powerless to order a redress of Plaintiffs’ grievances
because the District Court cannot extract a remedy
from a stranger to the litigation. Indeed, in this
litigation, it would violate Donald J. Trump’s due
process rights to issue a judgment against him
personally. Trump qua the individual was not
served, was not represented by personal counsel of
his choice, and was not able to mount any defense in
that capacity.21
This conclusion is not changed if the third-party
payments to Trump-affiliated private commercial
entities were motivated by the clout of the
President’s position. For example, the capacity
analysis with respect to the Domestic Emoluments
Clause does not hinge on whether the state
government’s motive for giving the purported
emoluments was to enjoy future benefits from the
President. The fact that the President would not
have received the purported emoluments but for his
being President does not turn either a private or an
individual-capacity constitutional violation into an
official-capacity claim. The reason is simple. Officialcapacity claims are tied to the office-holder’s conduct:
the accepting or receiving proscribed emoluments
must be driven by a government policy or custom.
The capacity analysis does not turn on whether the
21 See also Graham, 473 U.S. at 168 (“Indeed, unless a distinct
cause of action is asserted against the entity itself, the entity is
not even a party to a personal-capacity lawsuit and has no
opportunity to present a defense.”).
14
payment of the emoluments was based on a thirdparty’s expectation of future benefits.
Without question, “‘the President is the only
person who alone composes a branch of government,’”
and therefore “‘[t]he interest of the man’ is often
‘connected with the constitutional rights of the
place.’”22 But the President still has “‘personal’”
affairs.23
Plaintiffs
have
alleged
specific
constitutional torts. The actus reus of the
Emolument Clauses is accepting or receiving
proscribed emoluments by a covered person. These
actions have only been alleged to occur through
distributions to the President’s personal accounts
from Trump-affiliated private commercial entities.
Plaintiffs did not allege that Trump engaged in
government-related conduct, followed a government
policy or custom, or acted under the color of law.
Here, sophisticated Plaintiffs made a strategic
choice. Having chosen to sue the wrong party,
Plaintiffs cannot establish the causation and
redressability prongs of Article III standing. Even
with novel claims based on the Emoluments Clauses,
Plaintiffs still need to comply with the wellestablished rules of capacity and standing.24
22 CREW v. Trump, 971 F.3d 102, 111 (2d Cir. 2020) (Menashi,
J., dissenting from the denial of rehearing en banc) (quoting
Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2034 (2020)
(quoting Federalist No. 51)).
23 CREW, 971 F.3d at 114 (Menashi, J., dissenting from the
denial of rehearing en banc) (quoting Mazars USA, 140 S. Ct. at
2034).
24 Amici raised the capacity issue before the District Court. See
Brief for Scholar Seth Barrett Tillman as Amicus Curiae in
Support of Defendant at 30 n.122, CREW v. Trump, 276 F.
15
IV.The Court Should Add a Supplemental
Question Presented, and Appoint an Amicus
Curiae to Argue That Plaintiffs Lack
Standing to Sue the President in His OfficialCapacity.
Throughout the course of this litigation, and in
two other parallel cases, the President in his official
capacity has been represented by the DOJ. In this
case, and in the others, DOJ has agreed with
Plaintiffs that an official capacity case is proper. If
DOJ is mistaken, and the official capacity case is not
proper, then the President would have to “promptly
retain[ ] [private] counsel for that purpose.”25 In
those circumstances, the DOJ would have no further
role to play in this litigation.
Still, proceedings from parallel litigation suggest
that the President’s private counsel would agree with
DOJ on this question. During oral arguments in
District of Columbia v. Trump, the Maryland District
Court referenced Tillman and JEP’s argument
concerning the appropriateness of the official-
Supp. 3d 174 (S.D.N.Y. 2017) (No. 1:17-cv-00458-GBD), ECF
No. 37-1, https://bit.ly/3iDgCtN. Tillman, in 2017, was also the
first to raise this issue in the academic literature. See supra
note 2. Cf. CREW v. Trump, 971 F.3d 102, 117 n.31 (2d Cir.
2020) (Menashi, J., dissenting from the denial of rehearing en
banc) (“The statement [by Judge Leval], issued more than three
years after the operative complaint was filed, is the first time
that anyone in this case has suggested that the President
should have been sued in his private capacity.”).
25 CREW, 971 F.3d at 133 n.9 (Leval, J., filing a Statement in
Support of the Denial of En Banc Rehearing).
16
capacity suit.26 Subsequently, the District of
Columbia and Maryland, filed an Amended
Complaint to include a claim against the President in
his individual capacity.27 In that case, the President
retained private counsel.28 And the President’s
private counsel maintained that only an official
capacity claim would be proper.29 All of the parties in
all three cases maintain that an official-capacity
action is proper. And they are not alone.
Tr. of Mot. Proceedings at 5:5–14, District of Columbia v.
Trump (D. Md. Jan 25, 2018), ECF No. 92, https://bit.ly/3lhZbkf
(“First, this is a suit against the President in his official
capacity and yet, I understand the plaintiffs are also arguing
that what he’s done here is really as an individual. He’s
benefiting individually. There’s at least one amicus brief I read
that seem to suggest that if he’s sued in his official capacity,
that changes the ballgame. Address that issue, if you will,
somewhere along the way since if I’m correct in understanding
plaintiff’s position, it’s because he’s personally profiting, not
because he is the President of the United States.”). Id. at 44:21–
24, 46:2–5, 97:17–25, 170:18–171:5. See also Motion for Leave to
Amend Complaint at 2, District of Columbia v. Trump, 291 F.
Supp. 3d 725 (D. Md. 2018) (Civ. A. No. 8:17-cv-01596-PJM),
ECF No. 90-1, https://bit.ly/30Xgsrl.
27 See Brief for Scholar Seth Barrett Tillman and the Judicial
Education Project as Amici Curiae in Support of Neither Party
with Respect to Motion to Dismiss on Behalf of Defendant in his
Individual Capacity at 1, District of Columbia v. Donald J.
Trump, 315 F. Supp. 3d 875 (D. Md. 2018) (No. 8:17-cv-01596PJM), ECF No. 114, 2018 WL 2159867, http://bit.ly/2sb58Wn.
28 CREW, 971 F.3d at 133 n.9 (Leval, J., filing a Statement in
Support of the Denial of En Banc Rehearing) (citing Notice of
Appearance, District of Columbia v. Trump, 315 F. Supp. 3d
875 (D. Md. 2018) (No. 8:17-cv-01596), ECF No. 109).
29 Reply in Support of Motion to Dismiss at 10, District of
Columbia v. Trump, 315 F. Supp. 3d 875 (D. Md. 2018) (No.
8:17-cv-01596-PJM), ECF No. 118 (“Claims under the
Emoluments Clauses must be brought against the President in
his official capacity.”).
26
17
Before the District Court in this action, twentyone law professors filed an amicus brief in support of
Plaintiffs. They contended that “a judicial remedy
that redresses Plaintiffs’ injuries would not require
the President to take any action—or decline to take
any action—in his official capacity.”30 With respect to
the Domestic Emoluments Clause, they wrote,
“however the case is captioned,” the President would
only need to “cease accepting emoluments from
government clients,” which “are not official acts.”31
The law professors were absolutely correct. But they
apparently did not recognize that their argument
undermined the propriety of the official-capacity
complaint. In a brief filed before the Second Circuit,
a mostly-overlapping cohort of the same law
professors made no mention whatsoever of the
capacity issue.32 The professors have not explained
why they now think that an official-capacity claim is
proper.
Given the posture of this lawsuit, the parties are
not adverse on the question of whether Plaintiffs’
case is properly pleaded as an official-capacity action.
And the Court’s jurisdiction turns on this question.
30 Brief of Scholars of Administrative Law, Constitutional Law,
and Federal Jurisdiction as Amici Curiae in Support of the
Plaintiffs at 13–14, CREW v. Trump, 276 F. Supp. 3d 174
(S.D.N.Y. 2017) (No. 1:17-cv-00458-GBD), ECF. No. 64-1,
https://bit.ly/36GgKGA.
31 Id.
32 Brief for Amici Curiae Scholars of Administrative Law,
Constitutional Law and Federal Jurisdiction in Support of
Appellants and Urging Reversal, CREW v. Trump, 939 F.3d 131
(2d Cir. 2019) (No. 18-0474-cv), App. ECF No. 40,
https://bit.ly/3d7tZBk.
18
Therefore, if certiorari is granted, the Court should
add an additional question presented:
Whether Plaintiffs lack standing because the
Defendant in his official capacity did not
cause, and therefore cannot redress, Plaintiffs’
alleged injuries.
The Court should also appoint an amicus curiae
to argue that question. This question is a threshold
jurisdictional issue. The concern that animates the
appointment of an amicus is particularly pronounced
when there is a lack of adversity concerning
threshold issues, such as whether the Court has
jurisdiction. The Supreme Court has regularly
appointed an amicus to argue potentiallyjurisdictional questions that neither party raised.33
Appointment of an amicus would be appropriate in
this case.
V. If This Case Becomes Moot, There Are
Several Grounds on Which the Court Should
Summarily Reverse or Vacate the Second
Circuit’s Judgment.
This case may become moot for one reason or
another. In that event, there are several grounds on
which the Court should summarily reverse or vacate
the judgment below. First, Plaintiffs lack standing
because the Defendant in his official capacity did not
cause, and cannot redress, Plaintiffs’ alleged injuries.
33 See, e.g., United States v. Windsor, 570 U.S. 744, 756 (2013);
Sebelius v. Auburn Regional Medical Center, 568 U.S. 145, 155–
56 (2013); NFIB v. Sebelius, 567 U.S. 519, 543–46 (2012).
19
Second, under Ruhrgas and Sinochem, the
Supreme Court has recognized that certain
“nonmerits threshold question[s]” may warrant
“dismissal short of reaching the merits.”34 Plaintiffs’
decision to improperly plead their case as an official
capacity action is such a “threshold question[].”35
Third, Plaintiffs lacked an equitable cause of
action to challenge purported ultra vires government
conduct.36 Therefore, the District Court lacked
equitable jurisdiction to hear the case.37 The Court
has recognized this defect in another case. Trump v.
Sierra Club stated that the federal government had
“made a sufficient showing at this stage that the
plaintiffs have no cause of action.”38
Fourth, there would be strong prudential reasons
to vacate the lower-court decision under the
Munsingwear doctrine.39 The Second Circuit failed to
34 Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S.
422, 431, 433 (2007) (citing Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 585 (1999)).
35 Sinochem, 549 U.S. at 433.
36 See Brief of Amici Curiae Scholar Seth Barrett Tillman and
Judicial Education Project in Support of Defendant-Appellant,
D.C. and Maryland v. Trump at 2–23, App. No. 20-1839 (4th
Cir. filed Sept. 25, 2020), App. ECF No. 16-1,
https://bit.ly/34yQyLs.
37 See Josh Blackman & Seth Barrett Tillman, What is the
Plaintiffs’ Cause of Action in the Wall Litigation?, The Volokh
Conspiracy (July 31, 2019), https://perma.cc/F5Z2-VEDB.
38 Trump v. Sierra Club, 140 S. Ct. 1 (2019). A petition for a
writ of certiorari is currently pending in Sierra Club. See
Supreme Court Docket No. 20-138. The Court may choose to
hold the three Emoluments Clauses cases pending the
resolution of Sierra Club.
39 New York State Rifle & Pistol Ass’n, Inc. v. City of New York,
140 S. Ct. 1525, 1526 (2020) (“‘Our ordinary practice in
20
consider the significant separation of powers
questions that would be raised if this sort of suit
could proceed against the sitting President. Judge
Menashi in the Second Circuit, and Judge Wilkinson
in the Fourth Circuit, ably identified these risks. 40
These concerns apply to Trump v. CREW, as well as
to the other Emoluments Clauses cases pending
before the Court. In short, the judgment below about
“the authority of the Presidency itself” need not
survive this “particular President.”41
Conclusion
The petition for a writ of certiorari should be
granted. The Court should add a supplemental
question about whether Plaintiffs have standing to
sue the President in his official capacity. Because the
parties are not adverse on this question, the Court
should appoint an amicus curiae to present these
alternate grounds for reversing the decision below.
Finally, if this case becomes moot, there are several
disposing of a case that has become moot on appeal is to vacate
the judgment with directions to dismiss.’” (quoting Lewis v.
Continental Bank Corp., 494 U.S. 472, 482–483 (1990))).
40 CREW v. Trump, 971 F.3d 102, 115 (2d Cir. 2020) (Menashi,
J., dissenting from the denial of rehearing en banc) (“‘[H]istory
is especially instructive when one branch of government claims
a novel power against another—such as the judiciary asserting
the authority to enjoin the chief executive—but cannot point to
a single instance of having used it.’” (quoting In re Trump, 958
F.3d at 298 (Wilkinson, J., dissenting from en banc judgment))).
41 Trump v. Hawaii, 138 S. Ct. 2392, 2418 (2018).
21
grounds on which the decision below should be
summarily vacated.
Respectfully submitted,
ROBERT W. RAY
Counsel of Record
Zeichner Ellman & Krause LLP
1211 Avenue of the Americas, 40th Fl.
New York, New York 10036
(212) 826-5321
rray@zeklaw.com
JOSH BLACKMAN
1303 San Jacinto Street
Houston, TX 77002
202-294-9003
josh@joshblackman.com
CARRIE SEVERINO
Judicial Education Project
722 12th St., N.W., 4th Fl.
Washington, D.C. 20005
(571) 357-3134
carrie@judicialnetwork.com
JAN I. BERLAGE
Gohn Hankey & Berlage LLP
201 N. Charles Street, Suite 2101
Baltimore, Maryland 21201
(410) 752-1261
jberlage@ghsllp.com
October 14, 2020
22
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.