"There is always a philosophy for lack of courage."—Albert Camus

Friday, November 03, 2017

Blumenthal v. Trump: Some People Do Not Get That Plaintiffs Have the Burden of Proof and Persuasion

Professor Josh Blackman, on my behalf, filed an amicus brief in Blumenthal v. Trump; our brief supports the Defendant: President Trump. Yesterday, amici in support of Plaintiffs filed. There was no response from the “Legal Historians,” i.e., Professor Jack Rakove et al., directed towards my brief. 

However, a group of legal academics, stylized as “Separation of Powers Scholars,” did respond to my brief (in a lengthy footnote). They wrote:

Amicus for Defendant, Seth Barrett Tillman and the Judicial Education Project (“Defendant Amicus”) seek leave to file a brief arguing that the Foreign Emoluments Clause does not apply to the President. Defendants have not taken that position. And, regardless, Defendant Amicus’s arguments hold no water. In particular, Defendant Amicus presents a flawed analysis of the phrase “any Office . . . under the United States.” The Constitution does not limit the Foreign Emoluments Clause to “officers” or “civil officers”—phrases on which Defendant Amicus’s arguments are based. Rather, the Foreign Emoluments Clause applies broadly to any “person holding any Office of Profit or Trust.” Outside of the Foreign Emoluments Clause, this phrasing appears only two other times in the Constitution, both of which apply clearly to the President (i.e., the impeachment clause, U.S. Const. art. I, § 3, cl. 7, and the prohibition against appointing as an elector any “Senator or Representative, or Person[s] holding an Office of Trust or Profit under the United States”, U.S. Const. art. II, § 1, cl. 2). Defendant Amicus “cannot point to a single judicial decision [, contemporaneous document, or official government opinion] holding that . . . the Foreign Emoluments Clause . . . [does not] appl[y] to the President.” Compare Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant at 2, 22.

Indeed the executive branch itself has understood the scope of the clause to be broader and far more encompassing than just “appointed” officials. See, e.g. Proposal That the President Accept Honorary Irish Citizenship, 1 Op. O.L.C. Supp. 278 (1963) (holding that Foreign Emoluments clause applies to offer of honorary citizenship to President Kennedy); Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 157-58 (1982) (determining that the Foreign Emoluments Clause would apply to an employee of the Nuclear Regulatory Commission, and holding that “[b]oth the language and the purpose of” the Foreign Emoluments Clause and the Appointments Clause “are significantly different” and that “[t]he problem of divided loyalties can arise at any level.”)[.][1]

The Separation of Powers Scholars have no response to:
            The Hamilton document.

They have no response to:
Gifts President George Washington received from LaFayette and from Ambassador Ternant.

They have no response to the other diplomatic gifts received by President Washington’s successors during the Early Republic, including:
Gifts President Thomas Jefferson received from Russian government officials and from foreign Indian nations.

They have no response to:
            The 1790 Anti-Bribery Act.

They have no response to:
The scholarly writings of Justice Joseph Story (1833)[2] and David McKnight (1878).[3]

The burden of proof and persuasion rests with Plaintiffs (and supporting amici) to show that the President is encompassed by the Foreign Emoluments Clause’s general office of profit or trust under the United States language. The burden is not on Defendant (and me) to show that the President is not so covered.



Seth Barrett Tillman, Blumenthal v. Trump: Some People Do Not Get That Plaintiffs Have the Burden of Proof and Persuasion, New Reform Club (Nov. 3, 2017, 3:49 AM), https://reformclub.blogspot.com/2017/11/blumenthal-v-trump-some-people-do-not.html.

[1] Brief of Separation of Powers Scholars as Amici Curiae in Support of Plaintiffs at 16 n.9, Senator Richard Blumenthal v. Donald J. Trump, President of the United States of America, Civ. A. No. 1:17-cv-01154-EGS (D.D.C. Nov. 2, 2017) (Sullivan, J.) (filed by Professors Rebecca L. Brown, Harold H. Bruff, Neil Kinkopf, Christopher H. Schroeder, Peter M. Shane, Kevin M. Stack, and Peter L. Strauss) (emphasis added), Doc. No. 25-1. [here
[2] 2 Joseph Story, Commentaries on the Constitution § 791, at 25960 (Boston, Hilliard, Gray, and Co. 1833). Story’s language is cited favorably here: Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1372 n.10 (Fed. Cir. 2006) (Gajarsa, J., concurring in part and concurring in the en banc judgment) (quoting § 791 of Story’s Commentaries approvingly); Member of Congress, 17 U.S. Op. Att’y. Gen. 419 (1882) (Brewster, A.G.), 1882 WL 3932.  

[3] David A. McKnight, The Electoral System of the United States 346 (Fred B. Rothman reprint 1993) (1878) (“[I]t is obvious that . . . the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.’”).
McKnight's book is over 100 years old, but it remains actively cited. See, e.g., Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy 313 n.32 (2005); Brian C. Kalt, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies 210 n.8 (2012); Tadahisa Kuroda, The Origins of the Twelfth Amendment: The Electoral College in the Early Republic, 1787-1804, at 191 (1994); (Judge) Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts 153 n.3 (2001).

Monday, October 30, 2017

Who Could Have Seen this Coming? Tillman on the Irish Courts

Mary Carolan, Top judge warns Irish appeal court is close to being ‘overwhelmed,’ The Irish Times (Oct. 26, 2017), irishtimes.com/news/crime-and

Seth Barrett Tillman, The Court of Appeal Backlog, 35(15) Irish Law Times 206–08 (2017), http://ssrn.com/abstract=2996405

Seth Barrett Tillman, Has the Irish Court of Appeal Solved the Judicial Backlog? Can it?, 34(14) Irish Law Times 210–12 (2016), http://ssrn.com/abstract=2816458

Seth Barrett Tillman, Opinion Editorial, Court of Appeal just a new version of Supreme Court—only more costly, The Irish Times (July 28, 2014, 1:30 AM), Business & Innovation at 7, http://www.irishtimes.com/news/crime-and-law/court-of-appeal-just-a-new-version-of-supreme-court-only-more-costly-1.1874746, http://ssrn.com/abstract=2465554

Ruadhan Mac Cormaic, Shatter arguments for Court of Appeal ‘incoherent’, says law lecturer, The Irish Times, Sept. 16, 2013, at 6, http://tinyurl.com/mqcxqp9, http://ssrn.com/abstract=2326071 (interviewing Tillman)

Seth Barrett Tillman, Opinion Editorial, Time to Open Courts and Let Justice Be Seen, The Irish Independent, August 22, 2012, 17:00 pm, at A14, http://tinyurl.com/bsy9789 


Seth Barrett Tillman, Who Could Have Seen this Coming? Tillman on the Irish Courts, New Reform Club (Oct. 30, 2017, 4:36 AM), https://reformclub.blogspot.com/2017/10/who-could-have-seen-this-coming-tillman.html

Thursday, October 19, 2017

The link between the Constitution and natural law

"Is the Constitution of the United States, then, a natural law document? No, it is not a philosophical treatise at all, but instead a practical instrument of government. We are safe in saying, nevertheless, that the Framers, with few conceivable exceptions, believed in the reality of natural law and had no intention of contravening natural law by the instrument they drew up at Philadelphia; nor did anyone suggest during the debates over ratification that the Constitution might in any way conflict with the old truths of the natural law."

-- Russell Kirk, Natural Law and the Constitution of the United States, 69 Notre Dame L. Rev. 1035 (1994). 

Wednesday, October 18, 2017

Good Lawyers & Good Books: My Personal Difficulties During the Recent Hamilton-Signatures Dispute

Some of you may be aware of my personal difficulties during the recent Hamilton-signatures dispute. Although the Emoluments Clauses cases will go on, and the issues I raised in my briefs are yet to be litigated (assuming that those issues are ever litigated), no one (I think) now objects to my characterization of the two Hamilton-related reports: the authentic Hamilton-signed 1793 report, and the post-1820 scrivener’s copy.

You might think that I overcame my opponents’ objections armed with little more than reason and good sense. You might very well think that…but I can comment—you’d be wrong to think that.

In addition to family and some particularly loyal friends, bloggers, and New Reform Club co-bloggers, I was aided at every step by good lawyering and good advice from Professor Josh Blackman (South Texas College of Law) and from Robert W. Ray, Esq. (Thompson & Knight LLP). More recently, Carrie Severino, Esq., from the Judicial Education Project, joined my briefs, and team Tillman was additionally aided by Jan I. Berlage, Esq. (Gohn Hankey Stichel & Berlage LLP). Just imagine the difficulties they all overcame—a novel constitutional theory & having Seth Barrett Tillman as a client! Nothing would have happened without their diligent work in three different district courts.

There is another group deserving of my thanks. My 5 experts: Professor Kenneth R. Bowling, John P. Kaminski, Ph.D., Professor Stephen F. Knott, Professor Robert W.T. Martin, and Michael E. Newton. (Links to their declarations are here: http://joshblackman.com/blog/2017/09/20/new-filings-in-the-emoluments-clause-litigation/.)

These five experts did a very brave thing. They knowingly took on the cause of historical truth in spite of the fact that a social media mob had already descended on me, and in spite of the fact that they don’t (as far as I know) have any particular love for the administration. (Indeed, one of them loathes the President, but nevertheless took on this project because it was the right thing to do.) They have all written extensively on Hamilton, the Constitution, the Founding Era, and/or the Early Republic. As a personal favor to me, and if you value what has been accomplished to date, I would ask you to buy their books. If you cannot buy a book or two, please ask your local library or university library to do so. Of course, cite to their publications in your articles and elsewhere. That’s a valuable thing too. If you want honesty in our courts, in legal practice, and in the wider intellectual marketplace of ideas, then honest researchers have to be able to make a living. So if you can, help.

Some of my experts’ books include:

Bowling: Charlene Bangs Bickford & Kenneth R. Bowling, Birth of the Nation: The First Federal Congress, 1789-1791 (1989). [link]

Kaminski: John P. Kaminski, Alexander Hamilton: From Obscurity to Greatness (Wisconsin Historical Society Press 2016). [link]

Knott: Stephen F. Knott, Alexander Hamilton and the Persistence of Myth (2002) [link] (@publius57)

Martin: Robert W.T. Martin, Government by Dissent: Protest, Resistance, and Radical Democratic Thought in the Early American Republic (2013). [link]

Newton: Michael E. Newton, Alexander Hamilton: The Formative Years (2015). [link] (@MichaelENewton1) (http://michaelenewton.com/)


PS: There is a literary allusion in my declaration. But no one seems to have noticed. It is a disappointment to me. [link

Seth Barrett Tillman, Good Lawyers & Good Books: My Personal Difficulties During the Recent Hamilton-Signatures Dispute, New Reform Club (Oct. 18, 2017),