Everything you say can and will be used against you.

Friday, April 19, 2019

Today—on Lawfare and on Conlawprof

Professor Dan Hemel on Twitter (Apr. 19, 2019, 12:02 PM) <https://twitter.com/DanielJHemel/status/1119315342432571393>: “Trump told White House Counsel Don McGahn to lie to Robert Mueller. Trumps best defense? That he really wanted McGahn to lie to 330 million people, of whom Mueller was only one.” (emphasis added)

Scott R. Anderson et al., What Mueller Found on Russia and on Obstruction: A First Analysis, Lawfare (Apr. 18, 2019, 11:43 PM), <https://www.lawfareblog.com/what-mueller-found-russia-and-obstruction-first-analysis> (characterizing Mueller’s report as: “creating a rigorous factual record concerning both Russian intervention in 2016 and presidential obstruction of the effort to investigate that intervention” (emphasis added)).

On Conlawprof, Professor AAA wrote: Judge Wright’s findings [from Clinton v. Jones] are no less damning (probably more) than those of Mr. Mueller.” (emphasis added).

Tillman responds:
I, for one, do not see any obvious equivalence between an unbiased independent judges findings in an opinion after the parties have had notice and opportunity to be heard, and a prosecutors offices report which attempts to marshal one side of the evidencewhere the object of the investigation (i.e., investigation=failed prosecution) has no opportunity to respond.


Seth Barrett Tillman, Todayon Lawfare and on Conlawprof, New Reform Club (Apr. 19, 2019, 3:45 PM), <https://reformclub.blogspot.com/2019/04/today-on-lawfare-and-on-conlawprof.html>.

Welcome Instapundit Readers!

Have a look around New Reform Club—my co-bloggers do good work.

Thursday, April 18, 2019

Conlawprof, WWII’s War Crimes Tribunals, and the Death Penalty

Responding to a prior discussion involving the death penalty and Justice Jackson (who had been a prosecutor at the International Military Tribunal at Nuremberg), AAA, a regular CONLAWPROF participant, wrote:
“I don’t care whether [Justice] Jackson was pro or con the death penalty personally. It hardly seems to matter. What’s important is that he recognizes that the death penalty exerts a distorting effect on the law and legal process …. Nobody has explained the rationality of the death penalty …. When’s the last time you told a child, or grandchild of yours that ‘killing other people is okay so long as we’re doing it to them because bad people deserve it; this is how we show people how good we are, by killing all the bad people’?”

Tillman responded:
Professor AAA would you affirm (in line with your prior post) that the death penalty imposed by the International Military Tribunals (IMTs) at Nuremberg, Tokyo, and Manilla were substantially wrongful?

I would have no problem explaining to adult third-parties that the reason the IMTs imposed the death penalty was that many of the war criminals remained hugely popular with large numbers of their countrymen (and their soldiers), and, for that reason, the Allies thought it prudent to block their election (or reelection) to public bodies after hostilities had ended. Many believed that WWII followed WWI in part because no such punishments had been meted out after WWI, and that but for the death penalty following the IMTs, the same people would look for a rematch in a WWIII. I dont know that they were wrong.

I think Professor BBB believes the EEC/EU has kept the peace (or helped to do so) in Europe. Some believe it was NATO. Maybe it was Nuremberg and its executions? It is a question I don’t claim to know the answer to. But I would be hesitant to say the Allied authorities, judges, and prosecutors at the IMTs were wrong based on my personal experience as a lawyer (and citizen) during peacetime in the United States.


Seth Barrett Tillman, Conlawprof, WWII’s War Crimes Tribunals, and the Death Penalty, New Reform Club (Apr. 18, 2019, 7:19 AM), <https://reformclub.blogspot.com/2019/04/conlawprof-wwiis-war-crimes-tribunals.html>. 

Welcome Instapundit and ChicagoBoyz readers!

Have a look around New Reform Club--my co-bloggers do good work.

Tuesday, April 16, 2019

Conlawprof, Soft Power, and the Murder of Jamal Kashoggi

Professor AAA wrote: “But soft power is different. We translated copies of the Constitution and the Declaration of Independence into Spanish and sent them out to Spain’s colonies in the New World. It is hard to imagine any policy that is more in our interest than to have a conversation with the nations around the globe why it is in their self interest to adopt some form of constitutional government ....”

Professor BBB wrote: “The fourth Count of the indictment is based on Crimes against Humanity.  Chief among these are mass killings of countless human beings in cold blood.  Does it take these men by surprise that murder is treated as a crime?”—Justice Robert H. Jackson, Opening Statement to the Int’l Military Tribunal at Nuremberg, Nov. 21, 1945”

Tillman responds:
I have no clear idea what Professor AAA meant by “constitutional government”? Did he mean: [1]—American-style separation of powers, with a president having an electoral mandate independent of the legislature? Or, [2]—Did he mean simply written constitutionalism? Or, [3]—Did he mean just having a government subject to norms and conventions? (Perhaps there is a fourth position?)

As to [2] and [3], I don’t think most recently formed countries ever thought of building on a foundation absent a written constitution (Israel is somewhat anomalous by this standard), much less absent any norms and conventions. If we, the United States, are recommending that newly formed countries adopt [1], that is, American-style separation of powers, then such advice is (in my view) positively harmful. I can think of few things more likely to destroy the chances of a new nation’s living at peace with itself and its neighbours than to take on such a system—a system which only worked in the U.S. (to the extent it worked at all—e.g., the American Civil War) for wholly fortuitous reasons (i.e., big oceans as defense in depth and relatively weak neighbours). If this is “soft power,” then it is positively a destructive force in the world.

Still, the people who marketed soft power over the last decade in the halls of power and among the voters were more than happy to engage in real politik when it suited them. See President Obama called Libya “a mess” <https://www.vanityfair.com/news/2016/04/obama-clinton-libya-mistake>. There are now slave markets in Libya. I wonder why that is? Secretary of State Clinton on Qaddafi: “We came, we saw, he died”: <https://www.youtube.com/watch?v=mlz3-OzcExI>. She laughs while saying it. Laughs.

As to Professor BBB … As long as we are looking to Nuremberg for a model or precedent: Did anyone laugh while the war criminals were executed? Did any of the prosecutors or the proponents of the war-time policies that led to Allied victory in WWII, go on film or radio, and in public discussions of the post-war executions, did they start laughing?

I also wonder if there is any cognitive dissonance amongst the participants on CONLAWPROF who: [1] oppose the death penalty under peace time conditions administered by independents courts and juries; and, [2] support a concomitant willingness to turn to Nuremberg as a model to guide current standards and thinking? What penalty do you think Jackson and the other prosecutors at Nuremberg (and at the other international military tribunals following Allied victory) sought?


Seth Barrett Tillman, Conlawprof, Soft Power, and the Murder of Jamal Kashoggi, New Reform Club (Apr. 16, 2019, 12:10 PM), <https://reformclub.blogspot.com/2019/04/conlawprof-soft-power-and-murder-of.html>

Saturday, April 13, 2019

Academics and Brexit

An American academic sent me the following e-mail:

“Actually what people are saying is something like the following:

A majority of us wanted Brexit. We have discovered, however, that within that majority there is no agreement on how Brexit should be done. Indeed, we are learning that a strong possibility exists that a majority prefers remain to any particular manifestation of Brexit (i.e., imagine three different versions of Brexit). Remain beats all three in a head to head vote. Given we have discovered the strong probability that any particular manifestation of Brexit is likely to have even less support than remain, revisiting Brexit seems a good idea.

Tillman wrote back as follows:

“If only we had honest and accurate polls, and if only people took polls as seriously as they do actual voting, and if all these things and more were true, you’d have a point, except the polls and pollsters thought Brexit would lose, thought Hillary would win, and thought Netanyahu in trouble. But none of it was true. None of it.

I also note that you don’t actually link to any polls that purportedly support what you are saying in your e-mail.


PS to NRC Readers: notice my interlocutor’s use of “actually” and “imagine” as if his points were difficult or novel ideas and concepts.

PPS: I have yet to receive a link to any such head-to-head polls, or even any polls showing a majority wants a second vote.

Seth Barrett Tillman, Academics and Brexit, New Reform Club (Apr. 13, 2019, 16:25 PM), <https://reformclub.blogspot.com/2019/04/academics-and-brexit.html>. 

Friday, April 12, 2019

100% of the Israeli Vote Counted

With 100% reporting <https://www.haaretz.com/israel-news/elections> Netanyahu/Likud 36 seats; Gantz/Blue-&-White 35 seats. Same as it ever was.... But the pre-election polls and exit polls showed a tie or Gantz ahead by 2 or 4 seats. After Brexit, and after Clinton-Trump, why trust the polls?

Seth Barrett Tillman, 100% of the Israeli Vote Counted, New Reform Club (Apr. 12, 2019, 6:25 AM), <https://reformclub.blogspot.com/2019/04/100-of-israeli-vote-counted.html>. 

Wednesday, April 10, 2019

Today’s Question On CONLAWPROF: Where Would You Put Trump?

Professor ZZZ asks: “Trump is not Stalin but in the history of national (federal) political figures in this country, I’m wondering … where [would] you put Trump? …  Having a POTUS so publicly awful along those lines lowers the horrible bar so dramatically that we will pay for years to come. Not being Stalin but being Roy Cohn is a hell of a legacy.

Tillman responded:

Professor ZZZ asks: “[W]here [would] you put Trump?”

No new, major land war(s) in Asia—so Trump is ahead of LBJ.

No missile crisis risking an exchange of nuclear weapons with a superpower—so Trump is ahead of JFK.

No wars of national conquest—so Trump is ahead of Polk (Texas) and McKinley (Philippines, Cuba).

No move to war after foreign power made full, reasonable efforts to amicably settle reasons for dispute—so Trump is ahead of Madison (War of 1812). Under Madison, we burned down the capital of British North America (York/Toronto), and they returned the favor in Washington. So Trump beats Madison.

No wars against native American tribes—so Trump is ahead of [fill in the blank—many such presidents could be listed here].

No wars based on poor intelligence or to prop up foreign absolute monarchies—so Trump is ahead of both Bush I and Bush II.

Trump has not interned 100,000s of US citizens based on race—so Trump is ahead of FDR.

Trump has not allowed a U.S. state or territory to go into civil war and then allow its government to be hijacked by the brigands who engineered the civil war—so Trump is ahead of Buchanan (Bleeding Kansas).

I still don’t know why President Clinton blew up an aspirin factory or why Secretary Clinton permitted NATO forces and materiel to blow up Libya—so Trump probably comes out ahead of both of them too.

Trump is ahead of Woodrow Wilson: World War I, and! his resegregation of the federal civil service. I grant you that being ahead of Wilson is not saying much...but then, the nation survived Wilson, and no one today thinks of Wilson as having lowered the bar vis-a-vis future presidents. Professor ZZZ seems to be worried about this. He wrote: “Having a POTUS so publicly awful along those lines lowers the horrible bar so dramatically that we will pay for years to come.” Really?—Will we pay for it in years to come, or is this just a shabby slippery slope-type argument?

I cannot say I see much sense in Professor ZZZ’s references to Roy Cohn. Roy Cohn’s permanent claim to fame is his association with McCarthy and aggressive anticommunism. Trump, by contrast, has been criticized for being too close to Putin. It is not exactly the same; actually, the two are not alike at all.

If words and pretty speeches are the measure of a president, then Trump comes up short. The question is whether that is the correct standard for measuring presidents in a dangerous world.


Seth Barrett Tillman, Today’s Question On CONLAWPROF: Where Would You Put Trump?, New Reform Club (Apr. 10, 2019, 14:19 PM), <https://reformclub.blogspot.com/2019/04/todays-question-on-conlawprof-where.html>. 

Israeli Election 2019: Before and After

BEFORE: Haaretz: “Channel 12 News[] [poll] has the center-left and right-wing blocs with 60 seats each—a tie. The channel’s exit polls also have Kahol Lavan [Gantz’s party] with 37 seats to Likud’s [Netanyahu’s party] 33.” <https://www.haaretz.com/israel-news/elections/netanyahu-elections-gantz-vote-updates-results-1.7105719> (Tuesday, 10 PM entry)

AFTER: The Times of Israel: “With some 97% of votes counted, Prime Minister Benjamin Netanyahu’s Likud and Benny Gantz’s Blue and White party still appear on track to get 35 seats each…. These results give the right and religious bloc 65 seats, while the center, left and Arab parties have 55.” <https://www.timesofisrael.com/liveblog_entry/after-97-votes-counted-second-arab-party-safely-crosses-threshold/> (Wednesday). 

Seth Barrett Tillman, Israeli Election 2019: Before and After, New Reform Club (Apr. 10, 2019, 1:43 AM), <https://reformclub.blogspot.com/2019/04/israeli-election-2019-before-and-after.html>. 

see also: <https://twitter.com/SethBTillman/status/1115853570950279169>

see also: Seth Barrett Tillman, Israeli Election 2019: Netanyahu and the PollsNew Reform Club (Apr. 9, 2019, 3:44 PM), <https://reformclub.blogspot.com/2019/04/israeli-election-2019-netanyahu-and.html>.

Tuesday, April 09, 2019

Monday, April 08, 2019

Response to Neal Goldfarb

Mr Neal Goldfarb, apparently a linguist and Deans Visiting Scholar with the Georgetown University Law Center, reached out to me on Twitter. What he had to say was spirited & interesting. You can see the full Twitter exchange here: <https://twitter.com/NealGoldfarb/status/1113863868038754304>. Neal’s chief complaint was that, in my court filings in the Emoluments Clauses cases against the President, I denominated the relevant constitutional provisions: the Foreign Emoluments Clause and Presidential Emoluments Clause, as opposed to the Foreign Emolument Clause and Presidential Emolument Clause

On Friday, April 5, 2019, I sent him a response by e-mail. See below. I have yet to hear back from him. But hope springs eternal.



Dear Neal,

Thank you for reaching out to me via Twitter. New friends are always welcomed—however late they are to join the debate. I have given your paper a once over. I don’t see any citations to my publications or to my co-authored publications with [Professor] Blackman, so I continue to wonder why you tweeted to me and Blackman, but not to [all the] other amici and parties—who all used the nomenclature adopted by plaintiffs in their complaints. It is a real puzzle!

If you could find your way to cite my publications, then I will be in a better position to respond. I write a great many responsive pieces: this academic year alone, I have had one article responding to Professor Yoo, a second article responding to Professor Fallon, and a third responding to Chief Judge Eckerstrom. I must give priority in relation to the people who actually cite me, as opposed to other people who just contact me informally by e-mail or by Twitter. I am sure you can understand that. If you still seek a response from me, particularly in the near term, I suggest you cite my publications and/or [amicus] filings in your paper in and around your footnotes 50 & 51—where you suggest the “emoluments” nomenclature is “near-universal.” [Goldfarb: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3333512>] You can find my briefs and other [judicial] filings here: <http://reformclub.blogspot.com/2018/02/a-work-in-progress-select-bibliography.html>. You can find my publications here: <https://papers.ssrn.com/sol3/results.cfm?RequestTimeout=50000000>.

I will also need some clarification from you in regard to a single point you make several times in your paper. You wrote: “[T]he lawsuits [are] against President Trump alleging that because of certain of his business interests he is in violation of the Constitution’s Foreign Emolument Clause and Presidential Emolument Clause.” (p.5) (emphasis added), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3333512>. Again, you wrote: “These two clauses are of course the subject of pending litigation against President Trump.” (p.19) (emphasis added). You make this claim in several other places in your paper. Can you identify for me who or what you mean by “President Trump”—What are you intending?; What is your meaning?; What you are trying to communicate?; and, How you think the reader will understand your writing here?, etc. I assure you, although you might think my question odd, it is not. It is meant seriously, and I intend to quote your answer in my future Response to Neal Goldfarb. My question is not “grammatical wonkery” or “academic wonkery.” I cannot turn to my future Response to Neal Goldfarb until you respond. So let me hear from you, particularly in the near term if you want to facilitate a response from me in the near future.

Best wishes & welcome to the debate,


Seth Barrett Tillman, Response to Neal Goldfarb, New Reform Club (Apr. 8, 2019, 1:07 PM), <https://reformclub.blogspot.com/2019/04/response-to-neal-goldfarb.html>. 

Friday, April 05, 2019

Asking The Important Questions: So Does This Mean Reagan Was Right Or Wrong?

Seth Barrett Tillman, Asking The Important Questions: So Does This Mean Reagan Was Right Or Wrong?, New Reform Club (Apr. 5, 2019, 5:05 AM), <https://reformclub.blogspot.com/2019/04/asking-important-questions-so-does-this.html>; <https://twitter.com/SethBTillman/status/1114089216315744256>. 

Welcome Instapundit Readers!

Thursday, April 04, 2019

A Tweet on Trump

Seth Barrett Tillman, A Tweet on Trump, New Reform Club (Apr. 4, 2019, 10:32 AM), <https://reformclub.blogspot.com/2019/04/a-tweet.html>; 

Glenn Reynolds, A REMINDER FROM SETH BARRETT TILLMAN: Trump disclosed his tax returns for 8 years to the Obama IRS, Instapundit (Apr. 4, 2019, 10:04 AM), <https://pjmedia.com/instapundit/326620/>.

Tuesday, April 02, 2019

Part VII: The Mystery of DC & MD v. Trump: Maryland Federal District Court Judge Opining About Non-existent Plaintiffs in Non-existent Case in Florida

The Court finds that Plaintiffs’ claims sweep too broadly. There is good reason why their standing should be recognized vis-à-vis the Hotel in Washington D.C., given the immediate impact on Plaintiffs in respect to the Hotel’s operations. It is a considerable stretch, however, to find the requisite injury-in-fact to these particular Plaintiffs that is traceable to the Trump Organization’s or, through it, the President’s conduct outside the District of Columbia. How indeed, for instance, have Maryland or the District of Columbia suffered and how are they suffering immediate or impending injury as a result of whatever benefits the President might be deriving from foreign and state government patronage at the Trump Organization’s Mar-a-Lago property in Florida or in the grant of patents to the Trump Organization or Trump relatives by China? In this respect, the Court, quite simply, sees neither immediate nor impending harm to Plaintiffs. Hence, the Court finds that these particular Plaintiffs lack standing to challenge the operations of the Trump Organization or the benefits the President may receive from its operations outside the District of Columbia. But to be perfectly clear: The Court reaches this conclusion only with respect to these Plaintiffs and the particular facts of the present case. This is in no way meant to say that other States or other businesses or individuals immediately affected by the same sort of violations alleged in the case at bar, e.g., a major hotel competitor in Palm Beach (near Mar-a-Lago) or indeed a hotel competitor anywhere in the State of Florida, might not have standing to pursue litigation similar to that which is in process here.

Extract from Judge Messitte’s standing-only opinion in: DC & MD v. Trump, Civ. A. No. 8:17-cv-01596-PJM, 2018 WL 1516306, 2018 U.S. Dist. LEXIS 51365, 291 F. Supp. 3d 725, 753 (D. Md. Mar. 28 2018) (Messitte, J.), ECF No. 101, <http://guptawessler.com/wp-content/uploads/2018/03/101-Opinion.pdf> (emphasis added).

Nothing to see here folks, just move along. Judge Messitte, in Maryland, had time to write all that about non-existent plaintiffs’ standing in non-existent cases to be brought in Florida or elsewhere against the President. But, even after 6 months after briefing was finished, Judge Messitte never managed to schedule an oral argument or to otherwise address the President’s motion to dismiss (in his individual capacity), and then Judge Messitte proceeded to launch discovery, notwithstanding his failing to address the motion. Nothing to see here folks, just move along. 

The September 2018 CJRA report is now out. See <https://www.uscourts.gov/sites/default/files/cjra_8_0930.2018_0.pdf>. It lists Judge Messitte as having a single motion overdue, that is, past the target 6-month deadline. In fact, Judge Messitte regularly meets expectations in regard to deciding motions. But for some unidentified reason, the Presidents motion was not decided in a timely fashion. 

Nothing to see here folks, just move along. 


Welcome Instapundit Readers! 

Seth Barrett Tillman, Part VII: The Mystery of DC & MD v. Trump: Maryland Federal District Court Judge Opining About Non-existent Plaintiffs in Non-existent Case in Florida, New Reform Club (Apr. 2, 2019, 7:23 AM), <https://reformclub.blogspot.com/2019/04/part-vii-they-mystery-of-dc-md-v-trump.html>.

Seth Barrett Tillman, Part VI: DC & MD v Trump—Can the President of the United States get Married or Divorced?New Reform Club (Mar. 20, 2019, 6:34 AM), <https://reformclub.blogspot.com/2019/03/part-vi-dc-md-v-trumpcan-president-of.html>. 

Seth Barrett Tillman, Trump’s 7% PanelNew Reform Club (Mar. 19, 2019, 10:05 AM), <https://reformclub.blogspot.com/2019/03/trumps-7-panel.html>. 

Seth Barrett Tillman, Part V: The Mystery of DC & MD v TrumpNew Reform Club (Mar. 12, 2019, 11:30 AM), <https://reformclub.blogspot.com/2019/03/part-v-mystery-of-dc-md-v-trump.html>.

Seth Barrett Tillman, Part IV: The Mystery of DC & MD v TrumpNew Reform Club (Mar. 11, 2019, 2:04 AM), <https://reformclub.blogspot.com/2019/03/part-iv-mystery-of-dc-md-v-trump.html>.

Seth Barrett Tillman, Part III: The Mystery of DC & MD v TrumpNew Reform Club (Mar. 10, 2019, 7:13 AM), <https://reformclub.blogspot.com/2019/03/part-iii-mystery-of-dc-md-v-trump.html>.

Seth Barrett Tillman, Part II: The Mystery of Senator Richard Blumenthal v. President Donald J TrumpNew Reform Club (Mar. 8, 2019, 1:38 AM), <https://reformclub.blogspot.com/2019/03/part-ii-mystery-of-senator-richard.html>.

For Part I, see: Seth Barrett Tillman, The Mystery of Blumenthal v. TrumpNew Reform Club (Mar. 7, 2019, 2:16 AM), <https://reformclub.blogspot.com/2019/03/the-mystery-of-blumenthal-v-trump.html>. 

I had several filings before Judge Messitte:
Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of Neither Party with Respect to Motion to Dismiss on Behalf of Defendant in his Individual Capacity, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, and in his individual capacity, Civ. A. No. 8:17-cv-01596-PJM (D. Md. May 8, 2018) (Messitte, J.), ECF No. 114, 2018 WL 2159867, 2018 U.S. Dist. Ct. Motions LEXIS 32, <https://ssrn.com/abstract=3174268>, <https://www.scribd.com/document/378704459/DC-and-Maryland-v-Trump-Amicus-brief-of-Seth-Barrett-Tillman-in-Support-of-Neither-Party-with-Respect-to-Individual-Capacity-Motion-to-Dismiss>.

Letter Brief filing Supplemental Authority, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Mar. 19, 2018) (Messitte, J.), ECF No. 97, <https://www.scribd.com/document/374271648/D-C-and-Maryland-v-Trump-Notice-of-Supplemental-Authority-3-19-18>, <https://ssrn.com/abstract=3141732>.

Letter Brief, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, Seeking an Order in regard to Plaintiffs’ Motion to Amend the Complaint, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Jan. 29, 2018) (Messitte, J.), ECF No. 88, 2018 WL 1128948, <https://www.scribd.com/document/370301834/Maryland-v-Trump-Correspondence-1-29-18>, <https://ssrn.com/abstract=3112896>.

Corrected Response [Brief] of Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Dec. 31, 2017) (Messitte, J.), ECF No. 77, 2017 WL 6880026, 2017 U.S. Dist. Ct. Motions LEXIS 466, <https://ssrn.com/abstract=3089868>.

Motion and Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Oct. 6, 2017) (Messitte, J.), ECF No. 27-1, 2017 WL 4685826, 2017 U.S. Dist. Ct. Briefs LEXIS 410, <https://ssrn.com/abstract=2996355>.

Friday, March 29, 2019

Free Speech Norms and Conlawprof

Professor AAA wrote: “I am happy to agree with Professor BBB that there is reason to be ‘suspicious’ of Attorney General Barr, at least as a general matter. I am willing to take that view not only in light of his role in the Iran-Contra pardons, but also because of his decision to offer an unsolicited legal opinion to the Trump Administration attacking a legal theory that he believed, on the basis of thinly-sources press reports, that Mr. Mueller was pursuing.” (emphasis added).

Barr sent a letter to a public official. Barr has particular expertise—he had some years ago worked in the Department of Justice and as Attorney General. Barr’s communication was not protected by any sort of confidentiality.  He is just a citizen writing his government about a matter of intense public interest. But for Professor AAA, this is a cause for “suspicion”? Really?!—why? I think Professor AAA’s statement is an extraordinary exemplar of the decline of U.S. and Western free speech norms.

Am I really the first (and the only) person on Conlawprof to see a problem here? What a depressing turn of events. See generally: Seth Barrett Tillman, Bob Bauer’s Free Speech Problem and Ours, New Reform Club (July 23, 2017, 10:36 AM), <http://tinyurl.com/y7ahouep>.


Seth Barrett Tillman, Free Speech Norms and Conlawprof, New Reform Club (Mar. 29, 2019, 3:13 AM), <https://reformclub.blogspot.com/2019/03/free-speech-norms-and-conlawprof.html>.

Tuesday, March 26, 2019

Brexit: Crisis or Success?

“If the government puts forward a major initiative that loses a parliamentary vote, the government must generally resign, given that defeat on a signature initiative of the government is usually a sign of no confidence in that government”…

The statement above is not wrong. It expresses the usual intuition on the subject. But the convention of the UK or Westminster Constitution (as I understand it) is that a government is not defeated for losing just any vote--if it can recover in short order or show that a majority of the Commons still support the ministers in their place. The more narrow understanding of the convention (in regard to a lost vote in the Commons) is that a government must command a majority for any bill to supply the Crown, as opposed to any bill on any other subject. To put it another way, if the opposition believes the government no longer commands a majority, then it can call a formal confidence vote or vote down a supply bill. That has not happened. So May and her cabinet remain in place. The convention remains intact. 

Notwithstanding PM May's many recent defeats in the Commons, her party still supports her and her cabinet's continuing in office--at least for now. She has not lost any supply votes, And perhaps more importantly, the programme she is putting forward is one to implement a popular referendum. It is not her initiative in the usual sense of that term. 

I don't think there is any substantial issue of a democratic deficit in the UK--in the sense of some long-term institutional failing. We (in the US) are thought to have such a problem in relation to our judges and our written Constitution--where democratically enacted statutes are struck down. And this situation is made less defensible because our Constitution, with its 2/3s and 3/4s supermajority requirements, often leaves the judges (not the legislature) with the last world. By contrast, the UK is always just an election and/or a statute away from any overreach by nonelected functionaries like judges (except for EU law purposes). If the Commons gets Brexit wrong--by failing to implement it when it should, then the voters will have their say at the next election, and if the Commons gets Brexit wrong--by implementing it when it should not, then the voters can elect a new House and have that house seek to take the UK back into the EU. Everything can be fixed by the voters and the next statute. For that reason, I don't see any institutional democratic deficit in the UK--except the fact that there is (by US standards) wide variation in seat "size" by population, and that Northern Ireland, Scotland, and Wales enjoy relative over-representation vis-a-vis England. I am not particularly worried that the dependencies have no representation in Parliament, or that those abroad for more than 15 years have no vote--particularly where such persons vote in the elections of other countries where they may have citizenship. 

What you are witnessing in the UK is not a crisis. It is a success. When most geographical units secede from a larger entity, they do so unilaterally, and sometimes violently. They do it through war or, if lucky, soft power. The UK is doing everything in accord with publci int'l law, EU law, and its domestic legal system. No armies involved. No violence. No threats of violence. Just elections. It is democracy and it is messy. It compares well to our war dead in 1776 and 1861. The world should be taking lessons--not mourning Brexit. 

If this is a crisis--the world could use many more such crises. 


Seth Barrett Tillman, Brexit: Crisis or Success, New Reform Club (Mar. 26, 2019, 12:07 PM), <https://reformclub.blogspot.com/2019/03/brexit-crisis-or-success.html>.

Welcome Instapundit and ChicagoBoyz readers!

Who watches the watchers?

We do eschew blatant partisanship here at the New Reform Club, but via Press Secretary Sarah Sanders, the Trump White House deserves this victory lap after its vindication.

Not that any of these folk will ever be held accountable for their unprofessional and unethical swinishness. Well, unethical, anyway. As members of the modern media, left-wing swinishness is a requirement in that profession. Truth and accuracy are optional.

None of these are obscure names. They are the stars of our modern media [leftist] firmament in their own words.

[To read their actual quotes, right-click on the below and hit 'open image in new tab.']

Friday, March 22, 2019

Brexit, the Extension, and Academia

Professor AAA wrote: “So Brexit will not happen until 12 April (at least).” [3/22/2019, 12:16 AM] I am not sure that is correct. The UK government sought an extension. The extension offered by the EU Council was not (as I understand it) the precise extension that the UK government asked for, and it comes with conditions. Even if the EU Council granted the precise extension sought by the UK government, there is still a UK statute on the books setting the date for Brexit at March 29, 2019, 11 pm. So before Leavers take a sigh of (temporary) relief—that pesky statute must still be repealed. Also, Prime Minister May has to back the extension even if the Commons votes to pass a statute against her wishes. If a statute is passed against the wishes of the government, the prime minister still remains in office (as prime minister or as caretaker prime minister), and the prime minister will (or, at least, might) recommend to the Queen not to grant her (the Queen’s) assent. Should the Queen not assent (at the advice of ministers), then the repeal never becomes a statute. The established convention of the UK Constitution is not that the Queen assents to all statutes which come from Parliament, but that the Queen accedes to statutes at the advice of ministers. If Prime Minister May is against the extension …. then it follows the purported repeal would fail …. not to mention that the British scuttlebutt is that the Queen personally supports Leave.

So I expect the extension will take effect—with the assent of Prime Minister May, the two Houses of Parliament, and the Queen. But I don’t think it is a given.

Professor AAA wrote:

Nigel Farage is one of the leading public figures threatening violence: [Farage:] ‘But if they don’t deliver this Brexit that I spent 25 years of my life working for, then I will be forced to don khaki, pick up a rifle and head for the front lines.’
(emphasis is Professor AAA’s). [3/22/2019, 2:47 AM]

What do you think Professor AAA?—Is it even possible that Farage was speaking in colourful metaphor? Like a recent U.S. President who said: “If they bring a knife to the fight, we bring a gun ….” (It wasn’t Trump who said this.) I am not so interested in what Professor AAA or Farage meant, as I am interested in suggesting how comments like Professor AAA’s are understood by many rank-and-file voters in the UK (and elsewhere). They hear Professor AAA’s comment as “You think we are violent and can be led around on a string, and that’s why you don’t respect us or our vote.” My view is that although not likely to incite violence, comments like Professor AAA’s are 100x more likely to incite violence than anything said by President Obama or MEP Farage.

Professor AAA wrote:

[Prime Minister May] blamed the Parliament for the mess that the UK is in now. That sounds like politics as usual in the US, but it is not in the UK. Remember that the [prime minister] is elected by the Parliament and serves at its pleasure. They have the job to check her, not the other way around. For her to turn around and accuse the Parliament of irresponsibility and to call out their constituents against them is, as Professor BBB notes below, a direct attack on the British constitution. [3/22/2019, 12:16 AM]

I do not think Professor AAA or Professor BBB is correct. I do not see any indication that commentators, parliamentary speakers or clerks, past or present, would agree that conduct like Prime Minister May’s (and I am not by any means a Prime Minister May supporter or fan) is a violation of any convention of the UK Constitution much less a “direct attack on the British Constitution.” I suggest that it is not wrong for this prime minister or any prime minister to criticize her predecessors, cabinet colleagues, back benchers, or fellow members of parliament—in private or in public. Going over the heads of members of parliament by calling a snap election or engaging in political speech is precisely what is meant by normal democratic politics. Seeking to constrain normal democratic politics by characterizing it as abnormal is precisely the sort of behaviour that made Brexit possible—if not an existential necessity to secure democratic rights for ordinary voters. I would also add that it is an all too casual over simplification to say that the prime minister “serves at [the] pleasure” of the Commons or that it is the Commons’ responsibility to “check” the Prime Minister. Rather it is the Commons’ responsibility to hold the prime minister to account.

Some years ago, Canadian Prime Minister Harper, in office at the head of a minority government, sought to check the formation of an all-opposition government. He did so by having the Governor-General prorogue Parliament, and then he went to the countryby engaging in ordinary free speech about politics. A few academics wrote that the Prime Minister ought not to engage in such political speech for reasons much like what Professor AAA wrote here. I responded with:

Dear Professor,

It seems to me that you need some normative model or guidance or test from which you could determine when a Prime Minister is acting in his own self-interest or that of his party as opposed to his best determination of the public good. There has to be some give here. A Prime Minister is not supposed to be a neutral bystander and he should be able to see the continuance of his Government in office as part (not the whole) of the public good. The next test ought to be—as you indicate—was Parliament granted a full, [fair,] timely, meaningful, and free vote to determine whether a Prime Minister and his cabinet should continue in office, but a full, fair, timely, meaningful, and free vote requires a normative basis to make that judgment. It is not the Westminster tradition that a timely vote means whenever the opposition can muster sufficient votes to bring down the Government. Just as the Government can set the election date, it can, consistent with practice, set the time for confidence votes. Such votes should not be delayed indefinitely, i.e., until the next election. But they need not be tomorrow or on one day’s notice either. As I understand it, what Harper did was delay that vote. There was no allegation of offering opposition members personal benefits to get their votes. If the delay was used to go out to the people to explain the Government’s position (i.e., meaning that the Government put forward its view of what an all-opposition cabinet would mean for the country), then that seems consistent with democratic norms. Indeed, that is consistent with what I believe to be the highest aspirational norms of the Anglo-American tradition. In doing so, a Prime Minister isn’t bringing Parliament to “heel”—I think that was your expression. Rather, such a Prime Minister is making Parliament, including the opposition, accountable [to the people]. It is true that a delay gives a Prime Minister [and his Government] some benefits—a lack of accountability during the time Parliament is prorogued. But it comes with substantial costs too. During that time, the Government loses the opportunity to move its legislation forward and the delay is seen as weakness on the floor of the House [and across the country at large].

For Harper to have violated a convention of the Constitution or to have given illegal advice to the Governor General [in regard to prorogation], you need to show (or so I believe) some sort of overreach beyond the norms of the [Canadian] Constitution. Such overreach might involve intentional actions by Harper out of self-interest, beyond merely seeking to extend the life of his Government. Such overreach would also include indefinite delay of a confidence vote. Finally, overreach would include seeking to check parliament through grants of lucrative office to opposition members (or bribes paid by third-parties). [On the other hand], where the time of the delay is used to actively engage in politics, i.e. talking to constituents and the press, that isn’t abuse, that is virtue. You arrive at the opposite conclusion (as I understand your position) because your vision of Parliament is one of its having unchecked supremacy between elections—in that situation, the floor members are entitled to a free vote without notice [to the Government] and they should not be made to explain their positions to constituents outside of an [active] election contest. But if that is your position (and I could be wrong on that), then what is wrong (or so I believe) is your normative vision, not Harper’s conduct.

Finally, don’t the two recent Canadian by-elections, particularly BQ losing a seat to the Tories, indicate that Harper had sound prudential reasons for believing that the voters did not want an all opposition government? <http://reformclub.blogspot.com/2018/06/tillman-on-conventions-of-constitution.html>

Professor AAA thinks an elected Prime Minister’s trying to pass a cabinet programme by directly speaking to her nation’s people is somehow a wrong—a threat. And that is why millions of people voted for Brexit, and—I might add—why millions of people voted for: Donald J. Trump.


Seth Barrett Tillman, Brexit, the Extension, and Academia, New Reform Club (Mar. 22, 2019, 5:23 AM), <https://reformclub.blogspot.com/2019/03/brexit-extension-and-academia.html>.