Legal Expert Says Trump Library Lawsuit Is So Weak Judge Could Toss It

Can a nonprofit farm and market, a psychology professor, a college student and Miami residents sue to stop Florida from transferring roughly $300 million worth of state land to the Donald J. Trump Presidential Library Foundation? One legal scholar says the domestic emoluments lawsuit is so “weak on the merits” that the judge should consider dismissing it without resolving what could be “difficult” questions about the plaintiffs’ standing.

The case, Sistrunk Seeds Inc. v. Donald J. Trump, names the president in his official capacity, not as a private individual. It is also the only active domestic emoluments lawsuit involving the president during his second term.

The Constitution’s domestic emoluments clause provides that the president “shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”

Dunn’s Overtown Farms, a nonprofit urban farm and market co-founded by historian and psychology professor Dr. Marvin Dunn, filed suit in May. The complaint alleged that the “library” Trump said would be developed on the Miami-Dade College parking lot could instead become “most likely going to be a hotel[.]”

The complaint characterized Florida Republicans’ gift of 2.63 acres featuring “waterfront views” to the Trump Library Foundation as an unconstitutional emolument. It also pointed out that Eric Trump is one of the foundation’s three named trustees. The plaintiffs asked U.S. District Judge Rodolfo Armando Ruiz II, a Trump appointee, to declare “null and void” the land transfer they say violated the Domestic Emoluments Clause.

In a motion seeking dismissal, the Justice Department stressed that “[n]o court has ever issued relief against a President regarding any claim arising from the Domestic Emoluments Clause.” The department argued that the Florida court “should not be the first” to do so.

Seth Barrett Tillman, an associate professor at Maynooth University’s School of Law and Criminology, told Law&Crime in an extensive interview Thursday that “amnesia” appears to have “infected the minds of both parties” in the litigation. Tillman, an American legal scholar based in Ireland, has submitted numerous briefs to the Landmark Legal Foundation as an amicus curiae, or friend of the court.

Tillman noted that the distinction between suing a president in an official capacity and suing him personally was litigated during Trump’s first term. That history, he said, raises questions about why attorneys at the Constitutional Accountability Center filed the current case without naming Trump in his individual capacity.

The professor suggested the omission may have been a “tactical choice” intended to prolong the case into Trump’s second term. Three emoluments lawsuits filed during the first term ultimately collapsed without producing a final decision on the merits.

“They actively chose to sue this President exclusively in his official capacity, they didn’t do it inadvertently. They’re not amateurs,” Tillman said. He argued that one possible strategic benefit would be to have the case dismissed, then refile it against Trump personally and continue the litigation “for as many fundraising opportunities and as many photo ops as they possibly could get out of it until the administration is over.”

“Only they know why they did this. Still, nothing would have been easier for them than for them to have sued the President, when they started this case, in both his official and individual capacities, right?” Tillman said. He cited the first-term case D.C. and Maryland v. Trump, which proceeded against Trump in both capacities.

In an amicus brief filed in August, Tillman argued that the Sistrunk Seeds plaintiffs had sued the wrong defendant by naming Trump only in his official capacity. He also said they made “no well-pled allegation” that Trump personally “received” the land.

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Tillman clarified that he was not arguing the plaintiffs would have a strong case had they named the proper defendant. Rather, he said he did not understand how the lawsuit could be viewed as a claim against the institutional presidency—meaning the president in his official capacity.

“Plaintiffs’ claim is that Trump, qua the individual, is walking away with unlawful booty. That’s an individual capacity claim,” Tillman said.

He also contends that the Justice Department’s legal position has shifted since the emoluments litigation during Trump’s first term.

“In the DOJ’s brief now in Florida, I think they’ve changed their position. I think they’ve adopted my position now,” Tillman said. “Now the DOJ is suggesting these Emoluments Clauses cases aren’t official capacity cases at all.”

“That’s surprising that the DOJ changed its mind, but it’s equally surprising that the Plaintiffs didn’t say it in their brief. Amnesia of some sort seems to infect the minds of both parties,” Tillman added.

With the motion to dismiss fully briefed, Law&Crime asked Tillman what he expects to happen next in the case.

He said he has “real doubts that this case is going to get past the motion to dismiss stage.” Tillman also said the judge may never reach his arguments if the lawsuit is dismissed because the plaintiffs lack standing.

He said Ruiz has another option, however, in the form of a “rarely used exception” to jettison the case without addressing “relatively complex standing issues.”

“Once courts say no standing, they don’t look at alternative lines of argument to dismiss a case. What the Supreme Court has said is, if the standing question is knotty or difficult, rather than make new standing law, if you could dismiss on another threshold ground that’s clear, that’s easy, that doesn’t require examining contested evidence, then you get to do that,” Tillman said.

“Very few courts have ever taken the Supreme Court up on this very interesting permissive alternative approach. But if there was ever a case to do it, I think it’s this one because I think there are any number of fairly easy grounds to dismiss this case—to throw it overboard,” he concluded. “It’s very weak on the merits, I suggest, and, in such circumstances, the courts don’t have to address difficult standing issues at all, and perhaps shouldn’t.”

A new foreign emoluments clause lawsuit was filed against Trump on Thursday, one also brought against the president in his official capacity.

The post Legal expert says Trump library lawsuit is so ‘weak on the merits’ that a judge should consider rare move to ‘throw it overboard’ first appeared on Law & Crime.