Case 8:17-cv-01596-PJM Document 88 Filed 01/29/18 Page 1 of 4

Josh Blackman
Josh@JoshBlackman.com | 202-294-9003 | 1303 San Jacinto Street, Houston, TX 77002

January 29, 2018

Dear Judge Messitte:

Amici Curiae Scholar Seth Barret Tillman and the Judicial Education Project (“JEP”) are
grateful that during oral arguments, the Court referenced an argument that was advanced in our two
briefs: that Plaintiffs’ complaint should have been pleaded against Donald J. Trump in his individual
capacity, not against the President in his official capacity. During the hearing, counsel for Plaintiffs
represented that they would file an amended complaint in due course raising individual capacity
claims. Before such a request is granted as a matter of course, Tillman and JEP submit this letter as a
friend of the court to alert Your Honor of certain potential problems with the expected Rule 15
motion. We had hoped to raise these concerns during oral argument, but our motion for leave to be
heard at argument was denied. [ECF No. 85]. To that end, even if the Plaintiffs’ motion is unopposed
by the Defendant, Tillman and JEP request that amici on both sides of the case be afforded a brief
opportunity to respond to the difficult questions that would be raised by Plaintiffs’ newly proposed
novel theory of their case. We are not asking for the expected motion to be denied, but rather to allow
amici a reasonable opportunity to provide this Court with useful information that may otherwise be
unavailable, which—as the Court knows—is something we have done since the outset of this
litigation.

F.R.C.P. 15(a)(2) provides that “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should freely give leave when justice so
requires.” The Fourth Circuit has recognized that “leave to amend a pleading should be denied only
when the amendment would be prejudicial to the opposing party, there has been bad faith on the part
of the moving party, or the amendment would be futile.” Johnson v. Oroweat Foods Co., 785 F.2d
503, 509 (4th Cir. 1986). There are no allegations of bad faith, but there are at least four reasons why
an amendment could be “prejudicial” or “futile.”

First, Plaintiffs have waived this issue. The Attorneys General of Maryland and the District
of Columbia are sophisticated parties who are very familiar with the distinction between suits against
an officer’s individual and official capacities. They defend such claims on a regular basis,
particularly in the context of prisoners’ rights litigation. They are the chief law officers of a state and
the federal capital, and they are both supported by many dedicated, expert staff attorneys. They are
all also familiar with what any first-year law student is taught: plaintiffs can, should, and, indeed,
must plead in the alternative (when permissible to do so). They must avoid claim splitting, and they
must bring all causes of action or legal theories at one time in one complaint. Here Plaintiffs failed to
plead both against the President in his official capacity and against the President in his individual
capacity.

Furthermore, these Attorneys General are supported by leading constitutional litigators and
prominent legal academics who no doubt understand this simple premise of civil litigation. For
example, Amici Curiae Administrative Law, Constitutional Law, and Federal Court Scholars in
support of the Plaintiffs raised the issue of official and individual capacity. [ECF No. 56-1 at 12].
This two-paragraph discussion fairly put the Plaintiffs on notice that this was a live issue. In these
circumstances, it is difficult to ascribe Plaintiffs’ decision to omit individual capacity claims as a
simple pleading error or oversight. Unless the Plaintiffs can persuade this Court to the contrary, their
decision to bring only official capacity claims should be viewed as a deliberate litigation strategy.
(As we will discuss later, by having made this choice, Plaintiffs avoided several difficult questions of
first impression.)
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Even if Plaintiffs were somehow unaware of this problem, Tillman and JEP raised the
official/individual capacity argument in our opening brief [ECF No. 27-1 at 31 n.119], and in our
response [ECF No. 77, at 2–7]. This Court “invited replies to those responses from any party or
amicus curiae who wishes to do so.” [ECF No. 72]. Faced with this Court’s order, Plaintiffs should
have either (1) rejected Tillman and JEP’s arguments, and explained their reasoned basis for their
objection, or (2) acknowledged that Tillman and JEP were correct, and that the complaint should be
amended. Instead, Plaintiffs simply ignored the issue, which was fairly raised in the first six pages of
a brief that this Court expressly invited. As a result, the legal system, this Court, and all of the parties
wasted significant time and judicial resources to prepare for an oral argument that could not resolve
the case at hand, absent an additional round of briefing. The Court may now need to hold an
additional hearing, which would have been totally unnecessary had Plaintiffs addressed this issue in
the first instance. This inaction, when action was called for, when the Court expressly invited a
response, constitutes waiver, and such deliberate, intentional, and knowing waiver precludes an
amended complaint.

Finally, permitting Plaintiffs to amend in the proposed fashion will prejudice Defendant.
Defendant’s primary defense was grounded in sovereign immunity. That defense only applies in an
official capacity suit. In regard to any individual capacity claim, Defendant will need to raise an
entirely new line of defenses. Additionally, Plaintiffs’ decision to bring an individual capacity claim
against the President may force him to retain new, private counsel. For example, in Clinton v. Jones,
which was filed against the President’s individual capacity, the Defendant was represented not by the
Justice Department, but by private counsel. 520 U.S. 681 (1997). Finding such counsel and bringing
them up to speed in the instant litigation could cause many months of delay. These duties will put
demands on the President’s time, and that, undoubtedly, will cause conflicts with his many public
responsibilities. All these difficulties are now necessitated by Plaintiffs who refused at each and
every step in the litigation to do what every first-year law student knows to do: i.e., plead in the
alternative.

Second, no cause of action exists to allow a suit against the sitting President in his individual
capacity for violating the Constitution’s Emoluments Clauses. Unlike the traditional action brought
under 42 U.S.C. § 1983—which allows suits against state officials in their official and individual
capacities—Congress has never seen fit to create a cause of action based on the Emoluments Clauses.
It is true that the Supreme Court has implied a cause of action under the Fourth, Fifth, and Eighth
Amendments pursuant to the doctrine announced in Bivens v. Six Unknown Named Agents. 403 U.S.
388 (1971). However, the Supreme Court has not seen fit to imply a constitutional cause of action
against federal officials with respect to other rights-conferring provisions of the Bill of Rights. See
generally Erwin Chemerinsky, Federal Jurisdiction § 9.2 (7th ed. 2016). Indeed, the Supreme Court’s
recent plurality decision in Ziglar v. Abbasi casts serious doubt on extending this doctrine to any
“new Bivens context.” 137 S. Ct. 1843, 1860 (2017).

This rule would apply with even more force to structural provisions (as opposed to rights-
conferring provisions) of the Constitution like the Emoluments Clauses. These structural provisions
have never been the basis for implied causes of action. Under Ziglar, courts should hesitate before
creating a new legal fiction based on provisions of the Constitution that have never been interpreted
by the Supreme Court at all. Finally, although we have questioned whether the Foreign Gifts and
Decorations Act, 5 U.S.C. § 7342(a)(1)(E), is premised on the Foreign Emoluments Clause, [ECF
No. 77 at 18-19], to the extent that the former statute is authorized by the latter constitutional
provision, the case for an implied cause of action becomes even weaker because Congress’s statute
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occupies the field. Where a federal statute occupies the field, there is no opportunity for a judicially-
created implied constitutional cause of action.

Third, Professor Tillman has been researching this issue since August 2017, and has not yet
been able to identify any case where a court implied a constitutional cause of action against a federal
officer in his individual capacity where the exclusive remedy sought was a mere declaration or
injunction, and not damages. See Seth Barrett Tillman, The Emoluments Clauses Lawsuits’s Weak
Link: The Official Capacity Issue, Yale J. on Reg.: Notice & Comment (Aug. 15, 2017),
https://perma.cc/HK4L-ZRVV. We have longstanding doubts whether any implied cause of action
against a federal officer in his individual capacity could be used to seek exclusively a declaration or
an injunction. A typical Bivens actions is a damages action. By contrast, this suit has always been
about declaratory or injunctive relief. Relatedly, given that such an implied cause of action would be
in novel, uncharted waters, Amici are unsure if the President would have the benefit of qualified
immunity. If qualified immunity does apply (and we see no reason why it should not), because there
is no clearly established law one way or the other, qualified immunity would be automatically
satisfied and Plaintiffs can in no circumstances enjoy any relief. In sum, an amendment would not be
a mere technical change in the pleadings; rather, it would constitute a radical transformation of the
case, and one which would, in any event, likely be “futile.”

Fourth, and most importantly, an amended complaint would require the Court to decide
whether there is a “difference between Donald J. Trump in his individual and official capacity.”
[ECF No. 77 at 2]. This question implicates the separation of powers in profound ways, and should
not be lightly considered. An amended complaint would thus “raise [several] new legal theor[ies]”
and defenses. See Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006). Indeed, Plaintiffs’ new
position would be radically different from everything they have pleaded to date, and radically novel
from all prior litigation against a federal official, much less a President. No court (as far as we know)
has ever confronted such a claim.

While these novel questions could be addressed at the Motion to Dismiss stage, the more
proper posture to adjudicate these issues would be in response to Plaintiffs’ expected motion to
amend the complaint brought under Rule 15.

As this Court has allowed in the past, Amici respectfully requests leave for all parties and
amici who have previously participated in this matter to respond to Plaintiffs’ expected Rule 15
motion. [See ECF No. 72]. This Court would benefit from a range of perspectives on these important
questions, in addition to those of the parties. Tillman and JEP are not prejudging a motion that has
not yet been filed, nor are we asking the Court to prejudge it. Rather, we are merely asking for the
Court to consider our perspective on this issue before it is resolved. Indeed, but for our prior
publications (which predate the Defendant’s motion to dismiss) and briefs, the official/individual
capacity argument would not have been presented to this Court in the first instance by either of the
parties. To ensure this case continues to proceed expeditiously, parties and amici on both sides could
jointly submit responses one week after the Defendant’s response to Plaintiffs’ expected Rule 15
motion would be due. Such a timeline would not unduly delay the case, which began more than six
months ago.

In any event, because the official capacity claims are fully briefed, nothing prevents this
Court from ruling on the Defendant’s pending motion to dismiss. [ECF No. 21]. If the Court finds
that the official capacity claims are valid, then Plaintiffs may not want to amend their complaint.
They might strongly prefer to go directly to discovery. In the alternative, if the Court dismisses the
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complaint because the official capacity claims are not properly pleaded, then a new amended
complaint could be filed focusing solely on the individual capacity claims. This streamlined process
would simplify future steps in the litigation, and reduce the already-duplicative briefing. However, if
the Court finds that official capacity claims are not proper, and that permitting an amendment to
allow individual capacity claims would be “futile” or “prejudicial,” or that such claims have been
knowingly waived, then a final judgment should be entered in favor of the Defendant.1

Sincerely,

/s/ Josh Blackman

Josh Blackman
1303 San Jacinto Street
Houston, Texas 77002
Telephone: (202) 294-9003
Email: Josh@JoshBlackman.com
Counsel for Amicus Curiae Scholar Seth Barrett Tillman

1
To the extent that the Court is reluctant to dismiss this action because there would be no viable Emoluments
Clauses actions against the President, and there is some concern that these claims ought to be fully and fairly
litigated, we advise the Court that a similar action remains active in the District for the District of Columbia, and the
action before the District Court for the Southern District of New York will be appealed in less than 30 days.
Moreover, in regard to this action, if Maryland’s and the District of Columbia’s derivative tax claims arising from
purported competitive injury suffered by the two convention centers are dismissed, the convention centers (i.e., the
actual parties suffering purported competitive injury) remain free to vindicate those alleged harms. Indeed, the
convention centers are better positioned and would make better plaintiffs than the Plaintiffs before this Court (whose
injuries are, at best, only indirect). Indeed, we continue to wonder: why are the convention centers not actually
parties to this case?