Jeremy Bates v. Donald J. Trump, et al.

President breaches duties to the United States, causing damages; and yet the Department of Justice (“DOJ”) fails to sue the sitting President. The Chief Executive then sees no bar to further abuse of power. If executive misconduct and attorney inaction are alleged in private entities, the remedy is established. Courts allow stakeholders—stockowners, partners, nonprofit members—to bring their entities’ claims. Such private stakeholders have Article III standing to sue officers derivatively. In early 2021 Jeremy Bates, a citizen-taxpayer, sued then-President Donald Trump derivatively, claiming breach of duty to, and seeking damages for, the United States. Bates alleged that then-President Trump had extorted Ukraine, obstructed justice, and incited the January 6, 2021 attack on Congress. DOJ moved under Rule 12(b). The district court dismissed. The Second Circuit affirmed for lack of Article III standing. It also held that Bates could not “assert any standing the United States may have” absent a “statutory exception” to 28 U.S.C. § 516. That provision reserves conduct of litigation to DOJ, “[e]xcept as otherwise authorized by law.” The questions presented are:

1. Whether a citizen may have standing to sue the President derivatively on behalf of the United States.

2. Whether, in light of 28 U.S.C. § 516, this action may proceed derivatively.