In District of Columbia v. Maryland, Judge Messitte (D.Md.) invited all parties (Plaintiffs, Defendant, and Amici alike) to respond to any arguments raised by the first round of Amici Curiae briefing. Our team filed a response on behalf of scholar Seth Barrett Tillman and the Judicial Education Project. No other responses were filed by any other party.
Here is our preliminary statement:
Tillman and JEP advanced two arguments that are fatal to Plaintiffs’ case: first, Plaintiffs’ lawsuit is not an official capacity lawsuit, as evidenced by the fact that it could not continue against the President’s successor in office; and second, the Foreign Emoluments Clause does not apply to the President, because he does not hold an “Office of Profit or Trust under [the United States].” Though Plaintiffs’ Amici addressed both of these issues, they did not substantively respond to contrary arguments advanced by Tillman and JEP. Assuming this Court finds that the Plaintiffs have standing, and that the case is justiciable, Tillman and JEP provide two alternate paths to conclude this case that are not advanced by the Defendant. The most straight-forward approach is to dismiss the Complaint because it should not have been lodged against Donald J. Trump in his official capacity. Nevertheless, if this Court should conclude that the official capacity suit is proper, then Count I should be dismissed because the President does not hold an “office of Profit or Trust under” the United States. Additionally, as Tillman and JEP previously explained in our opening amicus brief, business transactions for value are not “Emoluments,” so Count II must be dismissed.
We also filed a motion for leave to be heard at oral arguments, which will be held on January 25, 2017 in Greenbelt. Here is the introduction:
On October 6, 2017, undersigned counsel submitted a motion for leave to file an amicus brief on behalf of scholar Seth Barrett Tillman and the Judicial Education Project (“Amici”). [ECF No. 27]. This Court granted leave on October 23, 2017. [ECF No. 42]. In that motion, counsel explained that “[i]f leave is granted to file this brief, Amici will respectfully request leave in the public interest to participate in oral argument in this matter to advance an argument the government did not: that the President does not hold an ‘Office . . . under the [United States],’ and is not subject to the Foreign Emoluments Clause.” Now, Tillman and the Judicial Education Project respectfully move pursuant to the Court’s inherent power to be heard at oral argument to provide the Court with alternative arguments that are not presented by Defendant, which are likely to help the Court resolve this case, in whole or in part. Defendant takes no position on this motion. Plaintiffs oppose this motion.
My sincere thanks to everyone on our legal team: Robert Ray, Brittney Edwards, Carrie Severino, and Jan Berlage.