The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Throughout the Emoluments Clauses litigation (See Parts 1, 2, 3, 4, and 5), we have made three primary arguments in amicus briefs filed with federal district courts in New York, the District of Columbia, and Maryland. First, we've written (following Supreme Court case law) that an "emolument" is the "profit derived from a discharge of the duties of the office," and not "anything of value." The Department of Justice ("DOJ") has made a similar argument in their briefs.
Second, citing text and history, we've contended that because the President does not hold "office . . . under [the United States]," he is not subject to the Foreign Emoluments Clause (which extends only to those who hold "office . . . under [the United States]"). DOJ has not affirmatively argued this position, but in a letter to the Southern District of New York, DOJ lawyers stated that "[t]he Government has not conceded that the President is subject to the Foreign Emoluments Clause." The DOJ's letter represents a shift from a 2009 Office of Legal Counsel ("OLC") opinion, which stated, without any analysis or explanation, that the Foreign Emoluments Clause "surely" applies to the President.
There is a third argument we have raised that the Government has been unwilling to advance: the three complaints were each filed against the President exclusively in his "official" capacity, but the conduct plaintiffs are complaining about is not "official" conduct. As such, the complaints were each improperly pleaded. UNC Law Professor Andy Hessick pithily tweeted about the issue back in June:
should be personal, I think. Not like his successor will have to defend it. Common mistake
— Andy Hessick (@AndyHessick) June 12, 2017
The Supreme Court recently explained that a suit against a Plaintiff in his individual capacity "to recover for his personal actions . . . 'will not require action by the sovereign or disturb the sovereign's property.'" Lewis v. Clarke (2017) (quoting Larson v. Domestic and Foreign Commerce Corp. (1949)). In other words, when an officer engages in purported illegal conduct, and such conduct does not involve government policy, then that conduct is personal in nature. Like in Lewis v. Clarke, an injured plaintiff can challenge this personal conduct by suing that officer for damages in his individual capacity. Such a suit could not be filed against the officer in his official capacity, because, the plaintiff's prayer for relief would "not require action by the sovereign."
Unlike the meaning of "emoluments" and the scope of the Foreign Emoluments Clause's Office-language, the principles involved here—distinguishing between official and individual capacity lawsuits—are long settled by Supreme Court case law. The principles are basic. What are those principles? First, suits against federal officers for their official conduct are, in fact, suits against the sovereign; the relief sought for such a suit must include (at least) declaratory relief or injunctive relief, in order to change the government policy at issue. Second, suits against federal officers for their individual conduct are not suits against the sovereign; the relief sought typically includes damages, as there is no government policy that could be declared unlawful or enjoined. In the former situation, i.e., an official capacity lawsuit, the purpose of injunctive relief (i.e., the typical relief sought in an official capacity suit, and the relief sought by plaintiffs in these cases) is to stop (alleged) ongoing illegality which is set as government policy. In the latter situation, i.e., an individual capacity lawsuit, the purpose of monetary damages is to compensate the plaintiff for his injury caused by the wrongdoer's personal conduct, i.e., conduct which was not performed pursuant to any government policy.
Lewis and Larson illustrate why the three Emoluments Clauses lawsuits are improperly pleaded. The plaintiffs complain about conduct that uniformly involves private commercial entities owned, in whole or in part, by the President. These entities predate Trump's becoming President; these entities have transacted business with foreign entities before Trump became President; and, Trump received or accepted distributions from these entities before becoming President. These commercial entities do not make federal government policy, and when Trump or the entities themselves receive or accept distributions or payments (including contractual consideration) from foreign entities, the receipt or acceptance of such benefits is not pursuant to any federal government policy.
In short, the gravamen of plaintiffs' complaints is not that the federal government is acting illegally, pursuant to any government policy, but that the President, qua individual, is acting unconstitutionally (by purportedly accepting illegal emoluments). In other words, these suits are individual or personal capacity suits. Indeed, as explained above, in a typical individual capacity suit, damages are sought, not an injunction. Plaintiffs in these three cases have not sought damages. They have sought injunctions and declarations, but their seeking this type of relief makes no sense: No federal government policy is at issue, at least none connected to the President or the entities he owns, in whole or in part, receiving or accepting distributions or payments. Even if the plaintiffs' prayers for relief are granted, under Lewis and Larson, such a judgment would "not require action by the sovereign" nor would such a judgment require any change in federal government policy. Thus, all three lawsuits are not "official capacity" lawsuits: each has been improperly pleaded from the day they were first filed.
Tillman discussed this issue on an online law journal in August 2017, and we raised it in each of the three amicus briefs which we filed. Our primary motive here was to alert (each) court and all parties that these three cases should not proceed in their current form. Perhaps sensitive to the oddity of Plaintiffs' complaint, the District of Maryland judge invited all parties and amici to file additional briefs. As Professor Rick Hasen indicated, such orders are virtually unheard of: courts rarely give amici an opportunity to respond to other amici.
To be honest, I've never seen a motion for one amicus to respond to another amicus in a case.
— Rick Hasen (@rickhasen) September 19, 2017
We were the only party/amicus to take up the Court's offer to file a clarifying responsive brief. Our response brief spent its first six pages, in a free-standing section, discussing why the Maryland suit was not properly pleaded against the President in his official capacity. Yet, the Justice Department did not advance this argument in any of its briefs before the Maryland Court (or any other court). Likewise, our briefs put the Plaintiffs in the Maryland action on fair notice that their complaint was defective. Plaintiffs (and Amici supporting Plaintiffs) did not reply to our responsive brief (which they were permitted to do), nor, at that juncture, did Plaintiffs seek to amend the Maryland complaint.
On January 25, 2018, Judge Messitte held oral arguments in Greenbelt, Maryland. Blackman attended. The very first question from the bench referenced our amicus briefs, and asked the parties to address whether the Maryland Complaint concerns actions taken in the President's official or individual capacity. Over the course of nearly five hours of argument time, counsel for the State of Maryland and the District of Columbia maintained that Trump's receipt of (purported) emoluments concerned his official capacity. But once confronted by skeptical questions from the bench, Plaintiffs volunteered to amend their complaint to bring claims against the President in his individual capacity.
Judge Messitte did not order the Plaintiffs to amend their complaint, but during the hearing, counsel for Plaintiffs represented that they would do so in due course, presumably through a Rule 15 motion. At the hearing, the Justice Department did not indicate that it would oppose such a motion—rather, the Government suggested that it would file a new motion to dismiss. In short, the Maryland action, which had been set either to be dismissed or to proceed onto discovery, now sits in limbo awaiting a Rule 15 motion to amend, a new round of briefing on a motion to dismiss (and possibly in regard to the Rule 15 motion too), and, presumably, a new oral argument on the revised motion to dismiss (and, perhaps, also in regard to the Rule 15 motion). Moreover, all Plaintiffs have to do, to move the litigation into its new "path," the obvious direction it should always have been in, is to change the Complaint's caption and the 1-page prayer for relief; yet, it is now more than a week later, and still no amended complaint has been filed.
But for the official/individual capacity argument raised in our amicus brief, the Court seemed inclined to let the case go forward to discovery. That the Government refused to engage this argument, both in light of our briefing, and after the Judge's pointed questions from the bench, is somewhat perplexing. Because the DOJ has remained silent, we submitted a letter to Judge Messitte as a friend of the Court. Our letter notes that the expected Rule 15 motion and amended complaint, shifting Plaintiffs' Complaint from official capacity claims to individual capacity claims, will transform every aspect of this lawsuit, including what defenses the Defendant can put forward. (We had hoped to raise these concerns during oral argument, but our motion for leave to be heard at argument was denied.) The Government may end up opposing Plaintiffs' expected Rule 15 motion along lines similar to those which we outlined in our letter to the Court, but even if the Government does not oppose the motion, we have asked leave for Amici on both sides to respond.
Our next post will discuss how both parties' position, advanced in the briefs and at oral arguments, fundamentally confuses how our constitutional structure applies to the official and individual (or personal) conduct of federal officers.