"There are only two ways of telling the complete truth—anonymously and posthumously."Thomas Sowell

Wednesday, February 20, 2019

The President, the National Security Establishment, and Conlawprof

Professor CCC,

You wrote: “And that doesn’t even begin to count the number of times [Trump has] rebuked the intelligence community and/or ignored their findings . . . .Until Trump, any one such instance would have been widely, if not universally, seen as beyond the palean obvious and outrageous breach of longstanding norms and his constitutional responsibility.” (parentheses omitted)

So your saying that Bush II did not rebuke the intelligence community [after the fact?] and he did not ignore their findings in regard to WMD’s [before he (as President) initiated a war in reliance on their findings]? Perhaps, Bush II should have done so—before, or after, or both? What do you think? Only about 22,000 American war dead and wounded. We, the People, elect the President, not the heads of the CIA and the other intelligence agencies.

The President is not a cipher. He is supposed to hear advice from his security establishment and others—he is not obliged to take that advice.
If, as Bob Bauer & Andrew McCabe and others have suggested, that the FBI/DOJ are running investigations of the President based upon his exercise of lawful free speech, then Trump is obliged (under Article II) to take corrective action and to supervise his subordinates.

Professor CCC, you wrote: “The silver lining, as Jack Goldsmith keeps emphasizing, is that thus far the institutions appear to have resisted the constant efforts to compromise their independence and professionalism.” Jack Goldsmith has certainly emphasized that despite Trump’s efforts these institutions are fairly robust and they have maintained a large degree of “independence.” As to so-called “professionalism,” Jack Goldsmith has questioned whether the FBI gets to decide the so-called “national interest” where the President’s judgment differs with prior policy. As I understand Jack Goldsmith’s position, he has argued that under Article II, it is the President who makes the national security call, even where the President’s position differs with his predecessor’s views, prior policy, and the judgment of the national security establishment. Where the FBI runs an investigation of the President based upon the President’s putting a new policy forward, that suggests that the bureaucracy does not understand its legal duty. Jack Goldsmith, in effect, has questioned the bureaucracy’s “professionalism”—albeit, he acknowledges that it is a difficult question. If Jack Goldsmith is correct about this, then it is hardly obvious why the President should not vent his own views to the public about FBI/DOJ failures (in his view) to conform to extant law and legal norms. Nor does it matter if the President is correct in his assessment of such (purported) failures. In this country, as a general matter, you dont investigate people for nothing more than airing a contentious political view in public—that standard must apply to the President above all others. After all, the President is also a party leader and elected on a party platform. The President does not have to “shut up” just because you and others do not care for what he has to say. One might even praise the president for his transparency. We used to call investigating people for their political speech and political associations McCarthyism. We used to think that that was wrong—but, now all is to be changed. Just like you and me, the President is not supposed to be investigated because some people object to what he has to say. 

To put it in slightly different terms, as I think Scalia argued from time to time, “independence” is not an unalloyed good. The more independence the bureaucracy has, the less democratic oversight and accountability exists. (To put it another way: the less democratic oversight, the less valuable your right to vote.) As for agency independence ... the FBI and DOJ are in the Executive Branch. They are not run by independent multi-headed hydra-like commissions. Both the FBI and the DOJ have a single presidential appointment at its helm; each is accountable to the President, and the President has a duty to supervise that agency head and agency. 

One might add, and I know no statute to the contrary, that where the FBI and DOJ are running an illegal investigation, one contrary to presidential policy, and established norms, then in regard to presidential subordinates in the FBI and DOJ, their merely asserting “professionalism” and “independence” does not (without more) excuse the president from supervising his subordinates. I don’t see any reason for that analysis to be wholly eclipsed because the target of that investigation might be the President and/or his colleagues, family, and friends. We see the same in regard to Article III judges under the rule of necessity. If an Article III court is the only court which can hear a class of cases, then the court should hear the case even if that judge and all other Article III judges face a conflict of interest. The President is charged with supervising the FBI and DOJ—there is no one else to do so, and the FBI and DOJ do not escape supervision where their illegality involves the president himself.

Professor CCC: Your position is (as best as I can tell) that the Bush II and Trump were and are obliged to take the advice and to accept the factual findings of the national security establishment. That view has consequences. President Bush II did not supervise the national security establishment in regard to WMDs. The consequence: about 22,000 American dead and wounded.


Seth Barrett Tillman, The President, the National Security Establishment, and Conlawprof, New Reform Club (Feb. 20, 2019, 2:04 AM), <https://reformclub.blogspot.com/2019/02/the-president-national-security.html>. 

My prior posts on this subject: Seth Barrett Tillman, Free Speech in Andrew McCabes America: A Post on Conlawprof,New Reform Club (Feb. 19, 2019, 6:54 AM), <https://reformclub.blogspot.com/2019/02/free-speech-in-andrew-mccabes-america.html>. 

Seth Barrett Tillman, Bob Bauer’s Free Speech Problem and OursNew Reform Club (July 23, 2017, 10:36 AM), http://tinyurl.com/y7ahouep.

Seth Barrett Tillman, This Is What Is Wrong With The American JudiciaryThe New Reform Club (Mar. 16, 2017, 4:23 AM), http://tinyurl.com/z4q9f8v.

Tuesday, February 19, 2019

Free Speech in Andrew McCabe's America: A Post on Conlawprof

In his 60 Minutes interview, former acting FBI director McCabe said:

There were a number of things that caused us to believe that we had adequate predication or adequate reason and facts, to open the investigation. The president had been speaking in a derogatory way about our investigative efforts for weeks, describing it as a witch hunt… publicly undermining the effort of the investigation.

Is not this statement troubling, if not Orwellian? Think or speak the wrong thing—and the government investigates you? In a 2017 blog post on New Reform Club, I wrote about this issue as follows:

We have a free speech problem in America. See This Is What Is Wrong with the American Judiciary, The New Reform Club (Mar. 16, 2017, 4:23 AM), http://tinyurl.com/z4q9f8v. [T]he wider legal community has embraced the same legal philosophy [taken on board by the high judiciary]. They want you to shut up, and if you don’t shut up, there is always punishment. Here is an example.

[First,] [t]he President resents Jeff Sessions’s decision to recuse himself and says that he would not have nominated an attorney general who intended to follow the recusal rules in this case. [Second,] [the President] also doubts that he can trust Deputy Attorney General Rod Rosenstein, because he was US Attorney in a city, Baltimore, that is Democratic in its voting pattern. In neither case does the [P]resident seem to appreciate, or be moved by, the conception of professionalism, including independence and impartiality of judgment. And, of course, Trump’s continued emphasis on the supreme importance to him of loyal subordinates in the ranks of law enforcement will not serve him well as prosecutors form a picture of him in evaluating evidence of obstruction. [Bob Bauer, Considering Trump’s Legal Position (and Problems) After the New York Times Interview, Lawfare (July 20, 2017, 11:30 AM), http://tinyurl.com/yax56hg9 (emphasis added).]

Let’s take [Bob Bauer’s] claims one at a time. “[T]he President resents Jeff Sessions’s decision to recuse himself and says that he would not have nominated an attorney general who intended to follow the recusal rules in this case.” First, Bob Bauer does not quote the President saying any such thing. What Bauer means is whatever the President said, this is what his words really mean. The second thing to note is the event at issue is one which happened in the past—it is not something which is happening now or is yet to happen; rather, it relates to Trump’s opinion as to a past event and how, hypothetically, he would have done it differently. So what is the problem? Trump, according to Bauer, resents Sessions’s decision. Is that view illegal? Is it a threat or a promise to do something illegal in the future? Bauer’s view amounts to this: the President holds the wrong opinion as to a past event.

Now look at Bauer’s second claim: “[The President] also doubts that he can trust Deputy Attorney General Rod Rosenstein because he was US Attorney in a city…that is Democratic in its voting pattern.” Now maybe the President is wrong about this, or maybe he is right. Let’s say the better view is (as Bauer suggests) that the President’s view is the wrong view about DAG Rosenstein. The President did not say Rosenstein is a crook or that if Rosenstein does the same thing again, he will be jailed. The President merely expressed (according to Bauer) doubts. Is that view illegal? Is it a threat or a promise to do something illegal in the future? Again, Bauer’s view amounts to this: the President holds the wrong opinion as to past events.

In neither situation does Bauer suggest that the President is lying. Bauer does not suggest that the views expressed by the President are anything but what the President actually believes. In other words, part of Bauer’s criticism is that the President is telling the truth (at least, as the President sees it). In neither situation does Bauer suggest that it is a good thing for this or any president to express his views forthrightly to the nation’s citizens about how he sees the world. Indeed, another element of Bauer’s overall critique is that the President is not listening to his legal advisers who have told the President (or who should have told the President) to shut up. Instead, the President refuses to listen to his advisers, and he keeps communicating with the public, i.e., telling the public precisely what he thinks about the issues of the day. Has Bauer considered the possibility that a good segment of the voting public likes the President’s honesty (even if they also disagree with his substantive views)?

OK. So much for Trump.

[What about Bauer?] Bauer thinks Trump has the wrong opinions about things that happened in the past and in regard to hypothetical events. Trump has the wrong resentments and the wrong doubts. So what should right-thinking people believe? Now Bauer tells us: we ought “to appreciate, or be moved by, the conception of [Department of Justice] professionalism . . . independence and impartiality.” Bauer cannot be telling us that Trump ought to appreciate these values as things in themselves. Rather, it only makes sense for Bauer to criticize Trump on these grounds if in fact the DOJ is professional, independent, and impartial. I suppose it might be, and if Bauer ended here we could agree or not with Bauer’s view here based on what we know about the DOJ’s past and current behavior. But Bauer does not end here. Rather, Bauer concludes with: “Trump’s continued emphasis on the supreme importance to him of loyal subordinates in the ranks of law enforcement will not serve him well as prosecutors form a picture of him in evaluating evidence of obstruction.” Now isn’t this the most extraordinary admission? Isn’t Bauer telling us that if you have the wrong opinions, if you have the wrong resentments, and the wrong doubts, and if you have the wrong (I kid you not) emphasis, then the likelihood of the DOJ’s prosecuting you will meaningfully increase? And if that is the measure of DOJ professionalism, independence, and impartiality, if those virtues are not to be found when the DOJ exercises its prosecutorial discretion, then isn’t Trump 100% correct in demanding loyalty?

Bauer describes a prosecutorial regime where free speech is not protected or even valued. His criticism of Trump is that Trump will not kowtow to the bullies and to his legal advisers (i.e., people like Bauer) who urge him to submit to the bullying. Does it even dawn on Bauer that maybe, just maybe, Trump ought to be praised for trying to reclaim America’s free speech tradition? Is it possible that thousands of voters, sensing the decline of our free speech tradition [even where or if disagreeing with his substantive views], voted for Trump for precisely this reason? And perhaps that is why Trump won several close states, if not the election, and why HRC lost?

This is a dangerous and divisive game that Bauer and the President’s opponents [and now McCabe and others] are playing. Bauer finds it perfectly normal, if not archetypically professional, for the prosecutorial arm of the government to mobilize itself against a citizen (here, the President!) for nothing more than expressing opinions about past public political events and for having the wrong resentments, the wrong doubts, and the wrong emphasis. Again: the wrong emphasis! Bauer’s sad comment on our ‘justice’ system and [its] professionals fills me with a sense of impending disaster. That tragic and intractable totalitarian phenomenon, which we see with horror in former Soviet Bloc countries, Third World dictatorships and, more recently, among the most politically correct members of the European project, is coming upon us in the United States by our own volition and our own neglect. It will be of European dimensions before we realize the full scope of the transformation in American free speech mores and law. Indeed, the transformation has all but come.

The above is from: Seth Barrett Tillman, Bob Bauer’s Free Speech Problem and Ours, New Reform Club (July 23, 2017, 10:36 AM). I have omitted quotation marks and footnotes on my Conlawprof post and above. My full post with quotation marks and footnotes is here: <http://tinyurl.com/y7ahouep>. FYI: Bob Bauer now teaches law at NYU. I sent him a link to the original 2017 post—he never responded.

Seth Barrett Tillman, Free Speech in Andrew McCabes America: A Post on Conlawprof, New Reform Club (Feb. 19, 2019, 6:54 AM), <https://reformclub.blogspot.com/2019/02/free-speech-in-andrew-mccabes-america.html>. 

Monday, February 18, 2019

On Constitutional Methodology

In answering this question, i.e., Does the Foreign Emoluments/Gifts Clause apply to presidents?, my own prior research had examined the Mandan gifts and the Tsar’s gift. I did so because a president’s receiving, accepting, and keeping a diplomatic gift is some evidence that he believes his conduct in this regard is legal, i.e., compliant with the Constitution. Where the president accepts the diplomatic gift in full public view absent complaint by the public (or objections raised by later commentators), then such conduct carries a presumption that he and the contemporaneous public believed the president’s conduct was legal. Finally, where the public is in the know, where it does not complain, and where a significant element of that public is composed of the president’s opponents in Congress, in the press, and in the country at large, then that is some further and significant substantial indication that the public agrees that the president’s conduct is legal. In regard to the Mandan gifts and the Tsar’s gift, Jefferson did not clearly speak to any constitutional provision controlling his conduct; rather, to the extent he spoke at all, he reported a personal rule of conduct—a rule which he was, on occasion, willing to bend, if not waive. All told, that is some evidence, albeit not conclusive evidence, that in Jefferson’s day, the Foreign Emoluments/Gifts Clause was not understood as applying to the president (and, by implication, to other elected federal officials).


The above is an extract from: Seth Barrett Tillman, Part I, Understanding the Jefferson Diplomatic Gifts: A Response to Dr. Andrew Fagal (Feb. 14, 2019), <https://ssrn.com/abstract=3311186>.

Dr. Fagals excellent article is here: Andrew Fagal, Thomas Jefferson and the Arabian Stallion: A Research Note on the Third President and the Foreign Emoluments Clause, 1(4) Law and Hist. Review: The Docket (Dec. 2018), <https://tinyurl.com/y7ordjep>. 

Seth Barrett Tillman, On Constitutional Methodology, New Reform Club (Feb. 18, 2019, 1:46 AM), <https://reformclub.blogspot.com/2019/02/on-constitutional-methodology.html>. 

Friday, February 15, 2019

Climate Change: What you can do

A earlier, funnier version of this appeared in The American Spectator Online in 2007.

Image result for global warming

Clip and save:
---Plug in your clocks only when you absolutely have to know what time it is. If you need the alarm, get up five minutes early to set it.
---Al Gore says cigarettes are a significant cause of global warming, so quit smoking and sell him the carbon credits.
---Your kids are useless for pushing your car up to highway speeds, but they can increase your mileage considerably around town. Use your headlights only when there's no moon, and remember, your horn uses less energy than your turn signal.
---Stairs make you huff and puff and expel carbon dioxide. Use the elevator. And sports are carbon-intensive too, so do 'em on your X-box.
---Take as long as you want browsing in the fridge. Leaving the door open cools the world off.
---Down more Slurpees, or better yet, nice frosty margaritas. See, this isn't so bad.
---Lower the thermostat in your Gulfstream jet, and make the help wear sweaters.
---We need our corn for ethanol. Switch from Fritos to pork rinds.
---Do not use a television or radio unless it's bicycle powered, like Gilligan's.
---Turn your computer off right now. Turn it off, get up out of your chair, open the window, stick your head out, and yell, and say it: "I'm as mad as hell, and I'm not going to take this anymo'!"

Then sit down quietly. Moving, talking and breathing should be kept to the absolute minimum. Human life is eco-unfriendly, and should be lived as little as possible. It's the moral thing to do.

Friday, February 08, 2019

Remembering Eddie Murphy's 'White Like Me’

As an alternative to black face issues in Richard Pryor & Gene WilderSilver Streak, some of you may remember this: Eddie Murphy, ‘White Like Me,’ Saturday Night Live (‘SNL’(circa Dec. 15, 1984).

This made me laugh as a child, and it still makes me laugh now. It would be awful to live in a world where artists were precluded from making such pure comedy gold. 

See also Steve Ciabattoni et al., 50 Greatest ‘Saturday Night Live’ Sketches of All Time, Rolling Stone (Feb. 3, 2014, 3:40 PM ET), <https://www.rollingstone.com/tv/tv-lists/50-greatest-saturday-night-live-sketches-of-all-time-12735/8-white-like-me-22966/>: “Eddie Murphy’s whiteface sketch was the most provocative SNL moment since Richard Pryor dropped by in Season One. (In fact, it was an explicit homage to Pryor, who played the author of a book called White Like Me during his SNL appearance.) Murphy had recently become a movie star—‘the first black actor to take charge in a white world onscreen,’ as he later told Rolling Stone [sic]—and was struggling to find his place among the Hollywood elite. ‘White Like Me’ satirized his discomfort, showing the hidden opportunities afforded to white people when black guys leave the room. We wouldn’t see such powerful, audacious comedy about American race relations until Chappelle’s Show arrived, 20 years later.

Seth Barrett Tillman, Remembering Eddie MurphyWhite Like Me, New Reform Club (Feb. 8, 2019, 4:00 AM), <https://reformclub.blogspot.com/2019/02/remembering-eddie-murphys-white-like-me.html>. 

Welcome Instapundit Readers!

On John Dingell Jr. and Our Democracy

American aristocracy: The Dingell seat in the United States House of Representatives has been in family hands (father, son, wife) continuously from 1933 to 2019 and through 2020. John Dingell Jr’s House service ran from December 13, 1955 to January 3, 2015: just over 59 years. He was preceded by his father (House service: 1933-1955), and he was recently succeeded by his wife (2015 to current Congress). 

John Dingell Jr’s son: Christopher D. Dingell was a member of the Michigan State Senate (7th District) from 1987 to 2003. Christopher D. Dingell is now a state judge. He is now 61 years old. 

Seth Barrett Tillman, On John Dingell Jr. and Our Democracy, New Reform Club (Feb. 8, 2019, 3:06 AM), <https://reformclub.blogspot.com/2019/02/on-john-dingell-jr-and-our-democracy.html>. 

Welcome Instapundit Readers!

Tuesday, February 05, 2019

Social Science Research Network February 1, 2019 Rankings for Non-US Law Schools

Seth Barrett Tillman, Social Science Research Network February 1, 2019 Rankings for Non-US Law Schools
New Reform Club (Feb. 5, 2019, 5:17 AM), 

Last 12 MonthsAll TimeAuthors
RankInstitutionTotal New Downloads# of New PapersNew Downloads per paperTotal # of Downloads# of PapersTotal Downloads per paper# of AuthorsTotal Downloads per authorNew Downloads per author
68National University of Ireland, Maynooth (NUI Maynooth) - Department of Law :: Ireland
85Queen's University Belfast - School of Law :: Ireland
87Sutherland School of Law, University College Dublin :: Ireland
167National University of Ireland, Galway (NUIG) - School of Law :: Ireland
210Trinity College (Dublin) - School of Law :: Ireland
250University College Cork - School of Law :: Ireland
726Trinity College (Dublin) - School of Law :: Ireland