Professor Tillman is an Associate Professor at the Maynooth University School of Law and Criminology in County Kildare, Ireland. He is a widely quoted authority on American constitutional law and legal history, and he is the author or co-author of numerous academic and popular articles, as well as amicus briefs. Today, he joins us to discuss his recently filed amicus brief in Sistrunk Seeds, Inc. v. Trump, a case seeking to resolve claims under the U.S. Constitution’s Domestic (Presidential) Emoluments Clause, being heard in the United States District Court for the Southern District of Florida.

(Interview conducted and transcribed by Maclain Conlin. All errors under the interviewer’s name (Conlin) are the interviewer’s errors; all errors under the interviewee’s name (Tillman) are the interviewee’s errors.)

Maclain Conlin: Before we delve into the legal arguments at stake in Sistrunk Seeds, Inc. v. Trump, could you please provide a brief overview of its fact pattern, the litigation which preceded it, and how this dispute came before a federal court?

Seth Barrett Tillman: In Sistrunk Seeds, the state of Florida and its agencies sought to transfer land to the Trump Presidential Library Foundation for the sake of creating President Trump’s presidential library. This transfer was challenged in federal court as a violation of the Domestic Emoluments Clause. (U.S. Constitution Article II, Section 1, Clause 7.) Sistrunk is, as far as I know, the only newly filed case against President Trump based on any of the Emoluments Clauses, starting with the new Trump-47 administration. There were three lawsuits, involving claims under the Foreign and Domestic Emoluments Clauses, brought during the Trump-45 administration. One case was filed in the United States District Court for the Southern District of New York, later brought as an appeal to the U.S. Court of Appeals for the Second Circuit. A second case was filed in the United States District Court for the District of Columbia, later brought as an appeal to the U.S. Court of Appeals for the D.C. Circuit. And, the third case was filed in the United States District Court for the District of Maryland, later brought as an appeal to the U.S. Court of Appeals for the Fourth Circuit. Two of those cases went to the United States Supreme Court. The third one, which was in D.C., never reached the merits stage at the Supreme Court, as the Court denied certiorari in that case. The two cases which reached the Supreme Court basically became moot or moribund at the end of the first Trump administration; thus, like the D.C. case, the Supreme Court never opined on the merits of either of these two cases. In all three cases, the plaintiffs were denied all substantive relief; indeed, they never reached the stage where they could begin full discovery, although Maryland and the District of Columbia were permitted to serve document-preservation subpoenas on businesses owned by President Trump.

Sistrunk was not filed at the beginning of the second Trump administration. In fact, the initial complaint was not filed until May 2026, over a year after President Trump’s second inauguration. Plaintiffs took their time, and perhaps the reason that they took their time is they were waiting for facts that they thought were most helpful. Part of the basis of this suit is that the transfer of property by various Florida government entities to Trump-affiliated entities is a problem under Florida law as they see it, not just under the federal Constitution. I do not have a view on Florida law myself. As I understand it, the claim under Florida law is being litigated in a separate lawsuit in Florida’s state courts, but Florida law is not my bailiwick.

MC: What is the Domestic Emoluments Clause, and what was its original purpose?

SBT: The Domestic Emoluments Clause states that, “The President shall, at stated Times, receive for his Services, a Compensation which shall neither be [i]ncreased 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.” However, we do not usually think that this constitutional provision’s prohibiting the President from receiving additional official compensation also restricts him from all sorts of things private citizens can do, including compensation related to private transactions. The first several Presidents, including John Adams, earned income beyond their federal presidential salaries, from their plantations and farms, and no one batted an eye thinking it was unconstitutional or in any way illegal. As far as we can tell, no one thought that a President’s participating in private commercial life was per se unconstitutional. The Domestic Emoluments Clause imposes restrictions on what a President may receive, but the clause does not categorically prohibit a President from receiving any and all income beyond that which has been prescribed by Congress for the President.

The original purpose of the Domestic Emoluments Clause is a matter of some debate, and we do not have a lot of early commentary or discussion from either the federal convention or from the state ratifying conventions or even from the newspapers at the time. And that is probably because most people thought they understood it and they did not have to spend a lot of time talking about something that was not really in dispute, and because they thought it had a very limited function. This happens a great deal with discussions of early constitutional provisions. People take the time to discuss things that are unclear as opposed to things that everyone readily agrees upon. My understanding of the Domestic Emoluments Clause—which really is a misnomer; it should be called the “Presidential Emoluments Clause,” because it only applies to the President as opposed to a wider class of domestic officials and officers—is that it is designed to ensure that when the President holds both state and federal positions, he cannot draw a salary in connection with the state position. There are some bars in the Federal Constitution that restrict a person to only having one official position, such as the Incompatibility Clause which applies to members of Congress. Under that clause, congressmen cannot have executive or judicial branch offices while they are members of Congress. But there are lots of joint office holdings that are not forbidden, or at least not expressly forbidden. There is nothing in the U.S. Constitution that forbids any federal officer, or any federal elected official, from holding a separate state office. As a matter of fact, in the first Congress, there was one congressman who was also a member in his state legislature because there is nothing that bars that. Some states bar it, but that is a matter of state statutory law and state constitutional law. Similarly, there is nothing in the Federal Constitution that bars someone in the executive branch from also being a judge. That basically happened with John Jay, who was both the Chief Justice and an ambassador—or functional ambassador—at the same time. The way I imagine the Domestic Emoluments Clause working is in a situation like this: Imagine a state governor or a high state official is elected President. He cannot delay taking the presidency because the electorate called on him to fill that position, but it might be that he cannot depart from the governorship either because of a statewide emergency. The Federal Constitution wants to guarantee all the states even-handed treatment, so he is barred from drawing on his state compensation in connection with his state position while he holds the presidency. That is what I think the clause is for. He could delay taking the presidency. Or, he could give up the state government position. But if he is going to hold both positions concurrently, he is barred from drawing the salary or compensation associated with the state position. And I say that because I understand an emolument to be the compensation that flows from a government position, office, or employment, as opposed to just any benefit that one could draw, including those in connection with private commercial transactions. And that is how the Supreme Court defined “emolument,” albeit, that construction of the term arose in connection with a matter of statutory interpretation in a case called Hoyt v. United States (1850).

So, for example, if a state decided to give a President a gift, that would be odd, but that result is not squarely prohibited by the Domestic Emoluments Clause. If the state decided to just transfer the property, I would say that is not an emolument. Now, it might be a bad thing from the state’s point of view. It might be a bad thing from the point of view of good governance at the federal level, but I do not think it is barred by the Domestic Emoluments Clause. And there is no claim here that President Trump holds anything like an official position, or office, or employment with the Florida government.

However, I really doubt that this case is going to be determined on what the purpose or scope of the Domestic Emoluments Clause is, because there are so many other ways that a court could resolve this case which would be less controversial. If I had to guess, I would guess that the federal district court will dismiss this case. And while I do not want to predict what the federal court of appeals will do, I doubt that the Eleventh Circuit would uphold this claim either.

MC: In your brief, you argue that there are several foundational legal problems with the plaintiffs’ suit. Why do these problems require dismissal of the plaintiffs’ suit?

SBT: There are several ways in which this case might be dismissed. The lawyers for the DOJ and the separate lawyers for the various state defendants, including Florida Governor DeSantis and the state agencies that transferred the property to the Presidential Library Foundation, have a whole series of arguments based on immunity—that is, state officials are immune from suit under the Eleventh Amendment. I claim no expertise in regard to that specific issue. “Immunity” may or may not be a winning argument. I am not focused on the state defendants in my amicus brief. I focused on President Trump and the federal constitutional claim against him. And the federal constitutional claim does not really apply against state officials because the commission of the tort, as provided by the language of the Domestic Emoluments Clause, is the act of receiving the contested property, that is, the purported forbidden “emoluments,” as opposed to the act of granting the forbidden “emoluments.” I suppose a court might say that, if state government officials gift property that is otherwise prohibited under the Domestic Emoluments Clause, then they are sort of like tortfeasors acting in conjunction or as an accessory to the primary wrongdoer. Maybe you could say that it is a civil conspiracy for accessories to commit a constitutional violation, and then maybe you could sue the state defendants too under the Domestic Emoluments Clause. Any such approach would work a radical expansion of the reach of this provision, that might be proper if such an expansion were expressly provided for by statute, but not otherwise.

Probably the strongest point that the defendants are going to argue, just as it was argued in the first Trump administration, is standing—that is, are any of these people really injured and therefore proper plaintiffs well-positioned to litigate this lawsuit? Plaintiffs’ standing claim here is fairly tenuous. It is not like the government is seizing private property and transferring it to the presidential library. This is all government owned property. How are the plaintiffs going to show that they were injured when the property being transferred is not theirs, unless they could show they were deriving some cognizable benefit from the property in its untransferred state? That is going to be an uphill climb for them. A lot of this seems to be rooted in the idea that they had expectations of access or continued access to the property that was controlled by the state, and that sort of argument is a possibility because there have been times in the past where the Supreme Court has shown some flexibility along these lines in applying standing doctrine. However, recently the Court seems to have been more restrictive, so it is very difficult to predict how this standing issue will be resolved. If I had to guess, I would say it would be difficult for the plaintiffs to get past the standing hurdle. And once the court rules against plaintiffs on standing, a court is unlikely to address in the alternative any other basis for dismissal, because the tradition of the federal courts is if you lose on standing, that ends the case.

I have not argued the standing issue in my brief. What I have argued in my amicus brief is that, if the court gets past standing, it should look at these other issues or, in the alternative, a court is allowed to consider merits questions as an alternative to standing, which the court may do, but only if the court does not have to look to contested evidence. If a court can dismiss a case on a pure question of law, without assessing contested evidence, that could be an alternate basis for dismissal, even without ruling on the standing issue. So, the arguments that I put forward in my brief could be reached if either the trial court decides that plaintiffs have standing, or, in the alternative, my arguments could be reached if the court does not assess standing at all, and then, the court should dismiss on some alternate purely legal ground, which it is allowed to do as long as it does not assess contested evidence.

In my brief, I make four different arguments for dismissing this case in lieu of assessing plaintiffs’ standing. They are all pure questions of law that do not require the court’s looking at facts other than the facts put forward in the complaint, which have been put forward by the plaintiff, or other well-known facts that the court could take judicial cognizance of that really are not contested, even if they are not actually mentioned in plaintiffs’ complaint.

MC: In your amicus brief, you discuss the concept of “official-capacity” suits. How have federal courts defined official-capacity suits in the past? Do the claims brought in this case fall within this traditional definition?

SBT: The first argument I make goes to the question of what capacity the President is being sued in. The plaintiffs chose to sue the President only in his official capacity. They sued him as President. And doctrinally, that imposes a burden on the plaintiffs. In an official-capacity lawsuit, the plaintiff must show that the defendant (here, the President) was following or acting pursuant to a policy or custom of the executive branch. Well, the President did not act here—that is, it was the presidential library that acted. So you cannot say President Trump was acting pursuant to an illegal policy. When you have an official-capacity suit, the allegation has to be that the policy or custom that is being pursued is illegal because it is inconsistent with the Constitution. So not only does the action have to be illegal, but it has to be pursuant to some policy or custom. If the alleged tortious conduct is not pursuant to a policy or custom, it just means the government actor acted on a lark, and he is acting in his individual capacity. Here, the plaintiff has not identified what that custom or policy is. And I think the plaintiffs will ultimately argue in court that anything the President does is pursuant to his own policy, because the President is a policy-maker. But I do not think that that argument will go anywhere because I do not think any court has ever held that the policy or custom restriction on official-capacity suits can be bypassed merely by saying that whatever the actor does automatically becomes a policy. A custom or policy presumes that there is something prior to the illegal activity that the illegal activity following an already existing policy or custom. That is what we mean by “custom.” It already exists. I have my doubts that plaintiffs are going to get over this hump, especially because the DOJ is asserting the same argument. Perhaps, plaintiffs are waiting to see what will happen in oral argument; still, I do not think the plaintiffs’ response brief, their opposition brief, really addressed this issue at all.

MC: In your brief, you explain that litigants cannot seek to offensively enforce a constitutional provision without authorization from Congress. What is the difference between offensively and defensively enforcing a constitutional provision, and why do the former claims require clear permission from Congress? How does the distinction between offensively and defensively enforcing the Constitution relate to the separation of powers?

SBT: Another argument that I made in my amicus brief is based on the difference between offensively and defensively asserting a constitutional claim. In 2024, the Supreme Court decided a case called DeVillier v. Texas. I did not file a brief in that case. It was decided during the same term as Trump v. Anderson (2024), the more famous case in which certain Colorado voters (as well as Colorado’s Secretary of State) sought a judicial order directing the Colorado Secretary of State to remove President Trump from the state’s primary ballot. In DeVillier, the Court said basically that when there is a constitutional provision that provides a constitutional right, a party can raise that right as a defense, just because it is in the Constitution. But a private-party plaintiff cannot assert a constitutional right against others based on the fact that there is a provision in the Constitution. A private-party plaintiff cannot sue the government merely because there is a right provided for in the Constitution. A private-party plaintiff cannot use a constitutional right offensively absent authorization in a federal statute. Now, there are exceptions to this, but as a general matter, to assert a constitutional right offensively, you need a statute. And that is not surprising because if you are suing another party, including the government, it is up to Congress to provide what the procedure is for bringing the lawsuit, and to provide what the remedy is. Otherwise, the courts are going to be deciding these issues. That is giving the courts a lot of power, and it is not obvious that they should have that power. As a matter of fact, many people, many judges, and many cases have said that causes of action are property rights. They are often called inchoate property rights—property rights that have yet to be adjudicated. It is up to Congress to define the scope of a property right that results from a federal lawsuit, and that is probably the main reason why constitutional rights cannot be asserted offensively by a private-party plaintiff against the government or against even another private party without a statute. That is precisely what is going on here. Here, in Sistrunk Seeds, the plaintiffs are trying to assert a purported constitutional right under the Domestic Emoluments Clause. They are seeking to ensure that the Constitution is complied with as they see fit, as if they are private attorneys general. No statute provided for this sort of lawsuit. And that is what DeVillier said you cannot do. They do claim that, as a matter of equity, plaintiffs can always assert such a right, but their explanation leaves equity in a very unrefined, abstract state. Their “equity” argument would naturally expand, and it would support any lawsuit seeking to enforce any purported constitutional right by any plaintiffs. If that is correct, then what the Supreme Court said in DeVillier is a non-starter.

To some extent, what the plaintiffs are trying to do is say that there has to be some sort of intermediate point between DeVillier and the few exceptional cases that have permitted private-party plaintiffs to bring suits offensively.

MC: Is Ex parte Young (1908), which permits private-party plaintiffs to bring suit against state officials who are purportedly seeking to enforce an unconstitutional state law, one of those exceptions?

SBT: Young is an exception, but it is one that comes with an explanation. In Ex parte Young, the plaintiff is bringing the lawsuit, but it is really an early adjudication of a defense. The plaintiff is saying, “I am about to be sued or prosecuted. I cannot wait for that because life goes on and I want my defense heard early.” Plaintiff, in such a lawsuit, is bringing the suit, but his arguments are cast as a “defense” anticipating state lawsuits which will be brought against him (the plaintiff). He is trying to stop impending government lawsuits (or prosecutions) which will be brought against the plaintiff himself. Another exception, and perhaps, a more famous one, is a suit against federal police for violating a plaintiff’s Fourth Amendment rights. This exception was a judicial creation: it was created in a Supreme Court case called Bivens v. Six Unknown Named Agents (1971). Bivens is an example of the courts’ creating a procedural mechanism or a cognizable cause of action that could be brought offensively by a private party against federal officers where there is no statute that is really on point. However, Bivens is an exception. As a matter of fact, there are some people, and I am one of them, who will say, given the language of DeVillier, that an ambitious police department might ask the Supreme Court to reconsider Bivens in light of DeVillier. I am not saying that the Court should reconsider Bivens or that that would be a good thing, but Bivens and DeVillier do seem to be in tension with one another, and DeVillier is the more recent statement of the Court. If Bivens dies, one could fairly conclude that it died of a “theory” or a group of “theories”—that is, it died in connection with the legal theories put forward in much of the irresponsible lawfare of the last decade.

MC: The Domestic Emoluments Clause prohibits the President from “receiv[ing]” an emolument. How does that requirement apply to this case?

SBT: A third way for the court to dismiss is to say that a violation of the Domestic Emoluments Clause occurs when the President “receive[s]” a forbidden emolument, whatever an emolument is. But here, what is the argument that President Trump received anything? The conveyance was to the Trump Presidential Library Foundation. The plaintiffs’ argument, which has some force, is that President Trump really leads the Foundation, and that even though he is not one of the three named trustees, the three named trustees are closely affiliated with him, so he is, arguably, in control of the property transferred to “his” Foundation. But I do not know if such control is enough to make out a valid claim. The constitutional provision at issue here does not say, “If the President controls the property . . .,” then that amounts to “receiv[ing]” the proscribed “emolument.” Rather, the provision applies if the President receives the “emolument.” As a matter of Florida state property law, that property belongs to the Foundation, not the President. I think the Sistrunk plaintiffs’ argument, that actual “recei[pt]” of the property is not a requirement for a cognizable claim, and that a valid claim is made out if the President is merely abstractly connected to the property, even though some other person or entity has legal title to that property, is unlikely to prevail. The boundaries of such an expansive claim under the Domestic Emoluments Clause would become difficult to understand and what the courts would do with such claims would become difficult to predict. Would it depend on what sort of property were at issue? A court might very well be unfriendly to plaintiffs’ boundaryless position. And the court will understand that any such rule is going to create future litigation. Since Clinton v. Jones (1997), at least—and perhaps even as early as Mississippi v. Johnson (1867)—courts have valued protecting the time of the President so that he can engage in his official tasks, and litigation can distract him from those tasks. As a result, there is probably going to be a tendency to narrowly define the scope of the Domestic Emoluments Clause to avoid burdening the President with litigation, particularly where that litigation is not clearly the sort of litigation that the Domestic Emoluments Clause is meant to encompass. If it is a gray case, I think many courts would say that deference should be granted to the President because the President has official responsibilities, and the courts will not want to burden his time in a way that would disrupt those official responsibilities. It has to be a clear case before we start talking about granting relief with regard to any claims under any of the three Emoluments Clauses.

MC: Does Florida’s transfer of land fall within the original public meaning of an “emolument”?

SBT: The final argument in my brief is that the land transfer at issue is not an emolument anyway. This issue, that is, What is an “emolument”?, was litigated in the three Emoluments Clauses cases that were brought during the first Trump administration, and at least two of the courts were friendly to the position that just about any benefit a President might receive is an emolument. I think those courts were wrong, and they did not provide much reasoning on this point; furthermore, these cases were not decided in the Eleventh Circuit, and they were not decided by the Southern District of Florida, much less by the Supreme Court, so I do not really think it matters all that much what these particular district courts and intermediate courts of appeals had to say. Moreover, they are somewhat less than persuasive precedents, because each of these decisions, where a court adopted an expansive meaning for “emoluments,” was subsequently vacated (or reversed). For all these reasons, I do not think a judge in the Southern District of Florida is going to be greatly influenced by these prior cases particularly because the courts did not explain their rationales in any detail. As a matter of fact, the D.C. trial court simply said that it was persuaded by the position taken by the Maryland District Court. The D.C. trial court never really explained anything, except by saying that it had been persuaded by another court, so the only court of record that really decided this issue was the Maryland trial court. And although the en banc Fourth Circuit rejected President Trump’s petition for a writ of mandamus in that case, the Fourth Circuit never really reached this particular substantive issue. And, of course, as I explained, all these decisions were subsequently vacated (or reversed).

And that is where we are now. The reply brief is due to be filed in Florida on October 1, 2026. There may be an oral argument. But there may be no oral argument—as the court may decide the motion to dismiss based on the briefs. That can happen. I do not think the questions in this case are particularly close, but sometimes a court will still grant oral argument to provide a party with the opportunity to clarify the points that they made in their written brief. One of the most surprising parts of this case for me has been the lack of amici on the plaintiffs’ side. This contrasts sharply with the first Trump administration, when there were about 24 amici across the three cases, and some of those briefs were joined by large groups of law professors. To date, only a single amicus brief, filed on behalf of a single individual, supports plaintiffs’ position.

Another somewhat surprising aspect of plaintiffs’ case is that they have not asked either for a preliminary injunction or for an expedited briefing schedule in addition to the remedies that they have sought. The leisurely pace of federal litigation and judicial decision-making leads one to conclude that Sistrunk Seeds v. Trump, like the three Emoluments Clauses cases filed in 2017, will time out—as moot—with the expiration of the (second) Trump administration. And, perhaps, that is what plaintiffs wanted then (under Trump-45) and what they want now (under Trump-47)? A cynic might suggest that what plaintiffs actually wanted then and what plaintiffs actually want now are photo and fundraising opportunities, discovery, and news stories illustrating to their donor base that they continue to fight the man, even if their cases are doomed to lose on standing, or in regard to other threshold issues, or on the merits. I certainly do not know if such a cynic would be correct in regard to Sistrunk Seeds v. Trump. Only the plaintiffs and their lawyers would know the answer to that.

MC: Professor Tillman, thank you for your time.

SBT: Thank you for having me.

Interview by Maclain Conlin

This interview was conducted on September 24, 2026. The reply brief in this case was filed on October 1, 2026. See generally Seth Barrett Tillman, Sistrunk Seeds v. Trump: The Docket, New Reform Club (Aug. 17, 2026); Seth Barrett Tillman, Trump-47’s Presidential (Domestic) Emoluments Clause case: Sistrunk Seeds v. Trump, New Reform Club (Sept. 25, 2026).