Legal expert says Trump library lawsuit is so 'weak on the merits' that a judge should consider rare move to 'throw it overboard'

Do a nonprofit farm and market, psychology professor, college student and local Miami residents have standing to sue and block Florida from gifting $300 million worth of state land to the Donald J. Trump Presidential Library Foundation? One legal expert says the domestic emoluments lawsuit is so "weak on the merits" that the judge in the case should consider tossing it without addressing potentially "difficult" standing questions.

In the case of Sistrunk Seeds Inc. v. Donald J. Trump, the president has been sued in his official capacity rather than his individual capacity, and the case stands out as the only active domestic emoluments lawsuit of the president's second term.

The Constitution's domestic emoluments clause says that a 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, sued in May alleging that the "library" the president said would be built on the Miami-Dade College parking lot at issue was "most likely going to be a hotel[.]"

The lawsuit alleged that Florida Republicans' gift of 2.63 acres with "waterfront views" to the Trump Library Foundation was an unconstitutional emolument, noting that Eric Trump is one of three named trustees of the foundation. The plaintiffs urged U.S. District Judge Rodolfo Armando Ruiz II, a Trump appointee, to respond by declaring "null and void" the "land transaction that resulted in the Domestic Emoluments Clause violation."

In its motion to dismiss, the DOJ emphasized that "[n]o court has ever issued relief against a President regarding any claim arising from the Domestic Emoluments Clause" and said this court "should not be the first."

But Maynooth University School of Law and Criminology Associate Professor Seth Barrett Tillman, an American legal scholar in Ireland who has filed numerous briefs with the Landmark Legal Foundation as an amicus curiae or friend of the court, told Law&Crime in an extensive interview Thursday that "amnesia" seems to "infect the minds of both parties" in the case, whether the plaintiffs or the DOJ.

The "issue of official capacity versus individual capacity was right before the courts" in Trump's first term, Tillman said, so he wondered why attorneys with the Constitutional Accountability Center who filed the lawsuit did so without suing Trump in his individual capacity.

One possibility, the professor said, is that the decision was a "tactical choice" to drag out the litigation through Trump's second term, similar to how three first-term emoluments cases flamed out, never reaching a final ruling 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," he said. "They did it for some tactical advantage, and one of the tactical advantages that they might want is they might want this case dismissed, so then they could start it up all over again and sue the president in his individual capacity and make this meritless case go on as long as they can 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?" he asked, pointing to the first-term case of D.C. and Maryland v. Trump. "That case was litigated against the President in both capacities."

In his amicus brief from August, Tillman argued that the Sistrunk Seeds plaintiffs, by suing the president in his official capacity, sued the wrong defendant and made "no well-pled allegation" that Trump "received" the land.

During the interview, the professor explained that he isn't saying the plaintiffs "have a good claim if they had sued the right defendant," but that he doesn't see "how this is a case against the institutional presidency, that is 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," he said.

But Tillman believes the DOJ's position has changed since the emolument wars of 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," he 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.

Now that the motion to dismiss is fully briefed, Law&Crime asked about the road ahead.

The professor expressed "real doubts that this case is going to get past the motion to dismiss stage" and that it's possible his arguments "won't be addressed at all," should the judge toss the case for lack of 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.