Law

Here is another question: What if President Trump and his wife should choose to go their separate ways? Can the President seek a divorce? Getting a divorce is not a de minimis benefit. Getting a divorce, especially with concomitant determinations about the division of marital property, calls for judicial discretion—so I guess, under Plaintiffs’ theory, the President must remain married as long as he is President. Tough luck Melania! Under Plaintiffs’ theory, the President cannot get a divorce in a federal court—as that would be an “emolument” from the federal government beyond his regular presidential compensation (and so purportedly precluded under the Domestic Emoluments Clause). He cannot get a divorce from a state court—as that would be an “emolument” from a state government (again, purportedly precluded under the Domestic Emoluments Clause). He cannot get a divorce from a foreign court—as that would be a foreign “emolument” (and so purportedly precluded under the Foreign Emoluments Clause). Trump just can’t catch a break!

Great stuff.

I do not know why Judge Messitte took this course of action. But if I had to guess this is what I would say. Judge Messitte denied the President his day in court, and when it looked like the President’s counsel was going to get his day in front of another court, Judge Messitte actively sought to frustrate those efforts. To put it another way, Judge Messitte, and all the parties, and all the amici, and all sophisticated observers know—we all know that this lawsuit was not brought by Plaintiffs in the hopes of prevailing on the merits. Plaintiffs would be happy with such a victory if it should come their way, but that is not why they brought this lawsuit. This lawsuit’s primary goal was and remains an effort by Plaintiffs to get discovery against Trump and his commercial entities—to see what (if anything) shakes out. The discovery in this lawsuit ordered by Judge Messitte was put on hold during the appeals process, and when Judge Messitte saw that his efforts to get discovery were being frustrated by the President’s counsel’s filing an appeal, Judge Messitte advised the Plaintiffs how (they might try) to lock the case out of the court of appeals and to put it back in his bailiwick where discovery could proceed, even where he refuses to rule promptly on threshold motions. Again, the President is not litigating against the Plaintiffs: they are little more than passive observers in this action. It appears to me that this litigation is, in reality, between Judge Messitte* and President Trump. Of course, that is all just guesswork on my part.

Read the entire post.

The plot gets curiouser:

Was Judge Messitte’s ordering the Plaintiffs to dragoon a second defendant into the case a breach of judicial ethics? I really do not know. But it is odd. Imagine one day finding yourself personally named as a defendant in some ongoing lawsuit, not because the plaintiff decided to drag you into the case in relation to some newly discovered evidence, but rather because the judge ordered the plaintiff to sue you before any discovery revealed any specific wrongdoing on your part. We don’t usually imagine that federal judges ought to chase down would-be plaintiffs, and then proceed to advise and urge (and order) them to sue people that the plaintiff had expressed no interest in suing. But that is basically what happened here.

Read the whole thing.

(Part III of this series of posts is here.)