Anti-Trump Litigants Struggle with ‘Novelty’ of Their Own Case

Plaintiffs in a lawsuit challenging President Donald Trump’s refusal to separate himself entirely from his business empire successfully sought a delay last week in the deadline to file a written response to the Justice Department’s written arguments.

The justification for the delay rests, in part, on “novel” issues the lawsuit has raised.

In a letter to U.S. District Judge Ronnie Abrams, attorneys for Citizens for Responsibility and Ethics in Washington (CREW) noted that the Justice Department received permission to file written arguments that exceeded the customary page limit in federal filings because of “two novel constitutional claims” raised by the suit.

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“For much of the same reasons, the plaintiffs request a comparable expansion of the page limit for their responsive brief” and to give CREW until August 11 to respond to the Justice Department’s motion to dismiss the suit.

Abrams granted a delay, but not as long as plaintiffs sought. She ordered CREW to file its response on August 4, adding, “No further adjournments will be granted absent good cause.”

The request for a delay drew the ire of Seth Barrett Tillman, an American legal scholar at Maynooth University in Ireland, who filed a friend-of-the-court brief arguing that Trump’s private income from his hotel businesses do not amount to “emoluments” forbidden by the Constitution.

“It’s the craziest thing I’ve ever heard,” he told LifeZette. “Why didn’t they think about how novel their case was before they filed it? … They control the timing.”

He added: “The only reason to have a delay in the case is to say, ‘Our case is novel.’ What a time to figure that out.”

Joseph Sellers, the attorney who sent the letter to the judge, could not be reached for comment Thursday.

Tillman also faulted the Justice Department, which according to the letter sent to the judge, agreed to the delay as long as it did not impact the lead government attorney’s previously scheduled three-week vacation in August.

“Why didn’t the judge laugh this out of court, I don’t know,” he said.

Tillman noted that thousands of prisoners, without the benefit of lawyers, file motions to federal courts alleging that they have been deprived of their constitutional rights. He questioned if Abrams or other judges would tolerate requests from those kinds of litigants to push back filing deadlines.

CREW argues that Trump is violating the Emoluments Clause of the Constitution every day because his hotels collect money from foreign government officials who stay at his properties. The clause prohibits U.S. government officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

Tillman said there should be no need for extra time to address the government’s motion to dismiss if it is as clear cut as CREW insists.

“If that’s the situation, they should look forward to getting this into court,” he said, adding that CREW is not telling the public in its news releases that it is a novel area of the law that is extremely complex.

Tillman is one of a very small number of experts on the Emoluments Clause. In fact, he counts just three others. He said he has been studying and writing about this arcane corner of the Constitution since 2008.

“Even my friends have told me, ‘You’re writing about a backwater. No one’s ever going to care,'” he said. “But now someone cares.”

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The friend-of-the-court brief he wrote lays out a long line of presidents dating to George Washington who would have been in violation of the Constitution under the interpretation offered by Trump’s critics.

But Tillman was not concerned with the facts of the case on Thursday. He said he was concerned with the conduct of everyone involved in the dispute — the plaintiffs, the judge, and even the Justice Department, which he argued seems uninterested in mounting a vigorous defense.

“No one is representing the public interest,” he said.