Everything you say can and will be used against you.

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>. 

Wednesday, March 20, 2019

Part VI: DC & MD v Trump—Can the President of the United States get Married or Divorced?

The Foreign Emoluments Clause and the Domestic Emoluments Clause use the term “emolument.” Plaintiffs in DC & MD v. Trump** take the position that this term has an all-encompassing meaning: it extends to any and all gains, benefits, and profits. In short, in any dealings with state and foreign governments, the President cannot accept any benefit, and the only benefit he can receive from the federal government is his presidential compensation as set by federal statute. Plaintiffs look to support this position in early dictionaries. In trial court proceedings below, Judge Messitte accepted this broad definition, but he limited it by excluding de minimis benefits. Judge Messitte’s de minimis exception was: [1] not argued by the parties; [2] was not supported by the Constitution’s text; and, [3] was not supported by the very dictionaries put forward as proof of the broad definition of “emolument.”

On appeal, Plaintiffs again argue for the broad (purportedly) dictionary-based definition of “emolument.” It is not clear if Plaintiffs support Judge Messitte’s de minimis exception. Still, Plaintiffs have their own exception: they argue that nondiscretionary state and federal (and, ostensibly, foreign) benefits are not proscribed by the two Emoluments Clauses. In other words, if the President was already receiving a state benefit (perhaps a state pension) prior to his election, and if he has that benefit as matter of right under a state (or, ostensibly, a foreign) statute, then he may continue to receive that nondiscretionary benefit while President. Like Judge Messitte’s de minimis exception, Plaintiffs’ nondiscretionary-benefit exception is not supported by the Constitution’s text and it has no support in contemporaneous dictionaries. This definition would explain why a President could own Treasury Bills and Treasury Bonds in his portfolio, although a discretionary book deal with or sales to state-government, federal-government, or foreign-government affiliated libraries would still be prohibited.

Now let’s discuss Plaintiffs’ It is not OK for the President if it is a discretionary benefit rule. The President goes for a drive in nearby Maryland. His car is struck by a drunk driver. The President sues the driver in Maryland state court. Nearly every step in the litigation calls for the exercise of (at least some) judicial discretion. Does that mean the President cannot sue? Does that mean he cannot sue until he stops being President? Is the President uniquely excluded from all our domestic courts—including the federal courts? Even in DC & MD v. Trump, the President’s counsel has asked for relief in trial and appellate court proceedings, but if Plaintiffs’ theory is correct, the President must be denied relief of any type in any stage of the litigation. He cannot even ask for a 1-day adjournment! If Plaintiffs’ theory of the meaning of “emolument” is correct, then any federal civilian or military officer abroad is precluded from accessing any foreign court because doing so would be a forbidden foreign emolument. Is not that result, for lack of a better term, “absurd.”*** If Plaintiffs’ position is correct, any time any federal officer abroad tries to access a foreign court as a plaintiff (or, perhaps, even as a defendant), then that officer must get the consent of Congress per the Foreign Emoluments Clause. Does anyone think that has been our practice since 1789? Does anyone think it should be?

Here is another question: What if President Trump and his wife should choose to go their separate ways? Can the President seek a divorce? Getting a divorce is not a de minimis benefit. Getting a divorce, especially with concomitant determinations about the division of marital property, calls for judicial discretion—so I guess, under Plaintiffs’ theory, the President must remain married as long as he is President. Tough luck Melania! Under Plaintiffs’ theory, the President cannot get a divorce in a federal court—as that would be an “emolument” from the federal government beyond his regular presidential compensation (and so purportedly precluded under the Domestic Emoluments Clause). He cannot get a divorce from a state court—as that would be an “emolument” from a state government (again, purportedly precluded under the Domestic Emoluments Clause). He cannot get a divorce from a foreign court—as that would be a foreign “emolument” (and so purportedly precluded under the Foreign Emoluments Clause). Trump just can’t catch a break!

OK. Let’s say (G-d forbid) that Melania dies. After a suitable mourning period, President Trump decides to remarry. He asks Justice Ginsburg to officiate at the ceremony. Everyone is ready to go forward, but then the Attorney General for DC seeks an injunction against Justice Ginsburg’s officiating. She does not have to officiate. It is discretionary. Trump cannot claim his getting married under the auspices of any particular judge or Justice is a matter of right. So the upshot is that the ceremony is—off? Really? Now you might say: Not a big deal. He can still get married—in any state where a marriage license is a matter of statutory right, as opposed to a matter of discretion. So we are supposed to believe that the President’s right to marry is, at least in part, limited by the Emoluments Clauses? Who knew?

There is a simple way to avoid these “absurd”*** consequences flowing from an overbroad meaning for the term “emolument.” The Supreme Court explained that the term “emolument” had a limited meaning. The Court explained: “the term emoluments … embrac[es] every species of compensation or pecuniary profit derived from a discharge of the duties of the office.” Hoyt v. U.S., 51 U.S. (10 How.) 109 (1850) (Nelson, J., for a unanimous court) (emphasis added); see also Roger Kerridge & G. McDonald, Emoluments “from” an office or employment, 8 Brit. Tax Rev. 311, 314 (1991) (“All emoluments are from employments, or from the equivalent of employments, that is the essence of emoluments.”); Roger Kerridge, Emoluments “from” an office or employment, 9 Brit. Tax Rev. 315, 318 (1990) (“[W]hile it is perfectly possible to argue that a payment is a profit but that it is not a profit from an employment, it makes no sense to argue that something is an emolument but that it is not from an employment . . . .  All emoluments must be from employments.”). 

[A well informed commenter on Instapundit notes that 3 Presidents have married while in office. See <http://disq.us/p/20jo6ld>; see also <https://www.whitehousehistory.org/questions/what-are-some-interesting-facts-about-presidents-first-ladies>.] 

[Another commenter adds: Under the definition put forth by the plaintiffs the President cannot attend a state dinner in a foreign country because that would be an emolument. <http://disq.us/p/20jon5g>


PS: If you read this blog (or my other publications), and if you make use of its ideas or words in your own writings, I welcome citations to my posts (and to my other publications). And, yes, this request extends both to academics and to others. I am at a stage in my personal career where every citation counts.

Welcome Instapundit Readers! 

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>. 

Oral Argument in Official Capacity Case, DC & MD v. Trump, App. No. 18-2486 (4th Cir. Mar. 19, 2019), <http://www.ca4.uscourts.gov/OAarchive/mp3/18-2486-20190319.mp3>. 

Oral Argument in Individual Capacity Case, DC & MD v. Trump, App. No. 18-2488 (4th Cir. Mar. 19, 2019), <http://www.ca4.uscourts.gov/OAarchive/mp3/18-2488-20190319.mp3>. 

**I had several filings before the Fourth Circuit in this matter. See Motion of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project For Leave to Participate in Oral Arguments, In re Donald J. Trump, and DC & MD v. Trump, App. Nos. 18-2486, 18-2488 (4th Cir. Feb. 27, 2019), ECF No. 52 (App. No. 18-2486), ECF No. 43 (App. No. 18-2488), 2019 WL 979106, <https://ssrn.com/abstract=3340961>;

Brief of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project in Support of Defendant-Appellant, District of Columbia and State of Maryland v. Donald J. Trump, in his individual capacity, App. No. 18-2488 (4th Cir. Jan. 31, 2019), ECF No. 31-1, 2019 WL 411728, 2019 U.S. 4th Cir. Briefs LEXIS 3, <https://ssrn.com/abstract=3314702>; and,

Amicus Brief of Scholar Seth Barrett Tillman and the Judicial Education Project in Support of Petitioner, In re Donald J. Trump, in his official capacity, App. No. 18-2486 (4th Cir. Jan. 29, 2019), ECF No. 28-1, 2019 WL 366219, 2018 U.S. 4th Cir. Briefs LEXIS 11, <https://ssrn.com/abstract=3314703>. 

***DC & MD v. Trump, Civ. A. No. 8:17-cv-01596-PJM, 2018 WL 3559027, 2018 U.S. Dist. LEXIS 124129, 315 F. Supp. 3d 875, 884, 889 n.24, 896, 899, 902 n.39 (D. Md. July 25, 2018) (Messitte, J.) (using the term “absurd” to express disagreement with Justice Story and others), ECF No. 124, <http://www.mdd.uscourts.gov/news/opinion-issued-district-columbia-et-al-v-donald-j-trump-2018-07-25t000000>. 

Tuesday, March 19, 2019

Trump's 7% Panel

Apparently the embargo on the identity of the 3 appellate judges in DC & MD v Trump (4th Circuit) has been lifted. The oral argument is today; it is going on right now as I write this post. See <https://twitter.com/kevspel/status/1107967856891883520>. The judges include: Niemeyer, Quattlebaum, and Shedd. For judges’ biographies, see <http://www.ca4.uscourts.gov/judges>. Two judges are from South Carolina, and the third judge is from Maryland. Only one is senior.

I have NO idea what the judges personal party affiliation is, or in what contested party primaries they registered to vote in, or if they ever ran for an office in a partisan election or primary. Chief Justice Roberts told us that there are no R and D judges. Let’s all keep to the agreed script.

‏There are 18 judges in the 4th Circuit, including 3 senior judges. Some judges were appointed by an R President; some by a D President. Some have more than one appointment (to the district court and also to 4th Circuit), and so they may have: 2 R appointments; 2 D appointments; or an R & a D appointment.

In the Fourth Circuit, 3 judges have D/R or R/D appointments (i.e., C.J. Gregory; Traxler & Floyd, JJ.). 8 of the 18 have R or R-only appointments. 7 of the 18 have D or D-only appointments. The chances of drawing a strictly R-only panel of judges are 8/18*7/17*6/16 = 7%.
Not that it matters.
Did I tell you?: only 7%. 

Now, let’s consider: in the federal trial court proceedings below in DC, in Maryland, and also in NY, when Trump drew 3 D appointed judges,** did the newspapers and mainstream media report it as: “Tough luck for the President—He drew a tough group of D-appointed judges”? No, of course not. That’s life—just as all mere plebians must take the judges that are selected for us randomly by the lottery of life. But literally moments after Trump draws 3 R appointed judges, what does our media say now: Josh Gerstein (@joshgerstein) on Twitter, <https://twitter.com/joshgerstein/status/1107989770750357504> (“Tough draw for Trump opponents as appeal draws a very conservative, all-GOP-appointee panel.”). Why is it a tough draw? Unless, just maybe, the Chief Justice was not quite right—unless, just maybe, Trump was (at least) partly correct. And what is more, we all believe (in fact, we all know) that Trump is (at least) partly correct. When our interests are at stake, we look to who appointed the judge(s) to the bench. 

“Tough”: Things are getting “tough” all around.


**Judge Emmet G. Sullivan is hearing one of the three Emoluments Clauses cases against President Trump. Judge Sullivan was a Clinton appointee to the District Court for the District of Columbia. To be sure, he was appointed to several positions in the DC courts (not the federal courts) by R presidents.

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

Welcome Instapundit Readers! 

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>.

Saturday, March 16, 2019

Coffee and Pants

"I get up, put on coffee and pants, see if I have something to say." 
I have never read Padgett Powell, but when I saw this quote of his some years ago, I remembered it. Because it was amusingly put, partly. But also because, as a writer myself, daily polling myself to see whether I had something to say, I found in it a mirror, in which I saw reflected an irksome creature: the modern writer. Its image gave offense to my internal editor -- the sleepless tyrant -- who, when I sit down to write, shrilly admonishes: "do not write as though you are stalling until you think of something to say! Do not be a loquacious bore!" It lashes me with Tocqueville's tongue: “to remain silent is the most useful service that a mediocre speaker can render to the public good.” And it mocks me as Evelyn Waugh mocked his fictional babbler Sebastian: when dear Sebastian speaks it is like a little sphere of soapsud drifting off the end of an old clay pipe, anywhere, full of rainbow light for a second and then - phut! vanished, with nothing left at all, nothing. 
The modern condition is a world full of people, writers and talkers all, with nothing to say to one another, all breathlessly writing and talking at each other at once. And here I am, rising each morning, heading off eager to join them. 
Neither I nor my internal tyrant will have total victory, so we have reached a pact, whereby I may be allowed write -- the editor's volume turned down, if never on mute -- until I think of something to say -- boring myself even right back to bed if I like -- on condition that I not consider publishing my impressionistic ravings. I have promised to try not to give to the reader, as a vain Alexander to a contented Diogenes, something he does not want by taking away what I cannot replace. There are, without my contributions, quite enough "superfluities as neither accommodate the body nor improve the mind," as Samuel Johnson said of modern writers, whose "wish is not to be studied but to be read." As I say, I've never read Powell, but frequently I feel, after reading the day's "takes" by those straining for something to say, the oily slick of so many burst soapsuds.   
In this I am, the more I consider the subject, on to something. Dr. Johnson in fact forecasted Mr. Powell more than a few times. "It is strange that there should be so little reading in the world," he later observed, "and so much writing." And he counted it a vice -- a Frenchman's vice, no less -- to talk needlessly: "A Frenchman must be always talking, whether he knows any thing of the matter or not; an Englishman is content to say nothing, when he has nothing to say." Writing in the 20th century, Michael Oakeshott identified discrimination and restraint as vital organs to education and culture: “To be educated is to know how much one wishes to know, and to have the courage not to be tempted beyond that limit.” Genuine culture, he held, teaches that “there is much one does not want to know.” The prolific Tom Wolfe showed admirable restraint in slowing his pace eleven long years before publish his second novel, A Man in Full, though by then at age 68 surely he had begun to feel a twinge of urgency.  
Searching for practical solutions, Joseph Epstein has wondered what it might take to get some of these people to stop writing. Should they merely name a figure an endowment could be established. The JD Salinger Chair in Keeping It to Yourself, perhaps. An annual awards banquet to recognize Remarkable Achievements in Restraint of Trivial Expression. Don't laugh. Architects stumbled onto this in the 1980s, after a run of historically ugly new buildings. “We used to give prizes to architects for doing buildings," observed Gordon Bunshaft." Now we give prizes to architects for drawing pictures.” It was true: in the wake of the disastrous experiments in worker housing (the visionary Pruitt-Ingoe projects having been put out of their misery in the mid-'70s), the American Academy and Institute of Arts and Letters awarded the Arnold W. Brunner Memorial Prize for Architecture to Michael Graves ... for his drawings. The buildings, it was clearly implied, won't be necessary.
But such a temptation, for writers, is the internet! Truman Capote chided that Kerouac didn't write so much as he typed, but imagine even asking 21st century man to constrain his broadcast even through the funnel of a keyboard: with podcasts and vidcasts and digital dictation, anyone can publish simply by talking into a smartphone. "Put on coffee and pants," Powell said, and only then see if you have something to say? The piker! Why wait? Just talk at your phone whilst putting on coffee and pants and phut! published: it is the world's problem now. The trivial, Jean-Francois Millet said, gives expression to the sublime. We are all impressionists now. But the "sublime," alas, proved just another loquacious bore. 
We are left with the leavings of all these bores, their coffee grounds and half-finished scribblings. Never has there been so much investment into human energy, with so little return. Think of the money spent on coffee every day. The number of hours devoted to writing, all sorts (think of the implications presented just in producing the writer's coffee and pants -- fair trade; rain forests; exploited labor; living wages; inequality; this pretentious blog post; &c). Add in the money invested in academia, with the rise of "academics" producing hyper-specialized books and papers and commentaries of commentaries. Is not the common introvert-writer's gripe against extroverts that they talk even while thinking of something to say? But one who talks at least limits his logorrhea to the spoken word, which biodegrades into the atmosphere and leaves us otherwise in peace. The loquacious writer, meanwhile, foists himself upon bookstores and blogs and internet search results of every sort, where his leavings seem never to disappear. Talkers only bend our ears; writers leave a permanent crease. One ducks out of a party for a moment's respite from extroverts vying for one's attention, only to find some introvert has carved his initials in the urinal.
Is this logorrhea stunting human intellectual development? Just as a thousand monologues do not make a dialogue, a thousand dialogues do not make for a public discourse. We are fractured, and not just in the political sense. Our attention is fractured, yes, but even that is not it. Our worldview is fractured, in that we do not even share a view of what the good life is, and so how are we to have a discourse about how to achieve it? Books, said Francis Bacon, cannot teach the use of books; knowledge must be accommodated to the purpose of life, which can only be known through honest commerce with mankind. One wants always to halt part way into any discussion and say, "but let's back up." Because there is always a sense, a pang of anxiety, that we've overlooked a deeper disagreement on some premise fundamental to carrying on whatever discussion we try to have. 
I confess I cannot read a magazine anymore. I cannot follow the threads. I tried the recent issue of The Atlantic. There one may find a story about lice being separated from their hosts, a problem -- the generous reader is asked to grant -- for people who hoped there might be some new interesting facts to learn and report about the parasite-host relationship. I do not know what facts, of factoids, these might be, or what tendency they might have to advance the human project in answering our Big Questions. And perhaps we cannot learn to answer the Big Questions until we relearn how to ask them. But in The Atlantic, a politics and current events magazine, the piece about the parasite-host relationship strikes me as autobiographical of their magazine-reader relationship. Any net reduction in sources for new information -- including stories about parasites being removed from their hosts -- threatens the magazine with being separated from their readers. I am not saying the essay is not important. What I am saying is, I could do without it sucking at my eyeballs. 
Think of how much an average politically-engaged person has to read and watch and absorb every day to stay informed. How would you teach a child to work up to your level? Would you even if you could? Don't you feel a sort of coldness, a chilly ickiness, after a day splashing about in those waters? Politics, the saying goes, is upstream of culture. The focus too often is on what's in the water. The fact is a burst dam will drown us before it poisons us.
But surely, you say, there is information we cannot do without? I would not begrudge anyone peeking to learn of any reports of imminent violent death. Or major disruptions in one's livelihood. The interest a farmer pays the news. But unless one is a microbiologist, one does not need to read a lice story about a future decline in lice stories. The reader -- and the writer -- looks out upon an ocean of web content, and asks: How can I consume this? Or: how could I add to this? One can only splash about in the shallows, or drown in the depths. It is not enough even to conclude, in fatalistic fashion, that there is nothing to be added, that it has all been said before. Perhaps it has been said before. But even so, there is the project -- perhaps the much more difficult project -- of giving the content shape and form. It is "not wholly without use to mankind," said Dr. Johnson, "that books are multiplied, and that different authors lay out their labours on the same subject; for there will always be some reason why one should on particular occasions, or to particular persons, be preferable to another; some will be clear where others are obscure, some will please by their stile and others by their method, some by their embellishments and others by their simplicity, some by closeness and others by diffusion." 
Before you can learn a fact, you have to have a place to put it. I remember buying my first stereo (right around the end of the era when you could buy record players), I organized my entire room so that the prized shiny black box with lighted screen and impressive buttons and knobs and dials could be displayed with prominence. When we learn a fact, where does it go? Have we any place to put it? How are we to remember it -- what associations do we form? If intelligence is about the relation of ideas, then oughtn't we give some thought to our faculty for relation? Even in the land of flies, a spider without spinnerets starves. Santayana's observation was that ideology helps us bear our ignorance of facts. But the corollary is that ideology might also help us with the bigger problem of selecting, relating, and thus actually understanding facts. An ideology, in other words, helps us tie-break conflicting facts. The public has been provided more facts, and has become more ideological, and this, we are told, is a paradox. It is not a paradox. It is proof of the corollary to Santayana's observation: supply a person with more and more instances of conflicting facts and you have supplied that person with more occasions to rely upon his ideology.
Facts alone are not interesting. We have never in human history had so many facts, and yet, it seems, so little understanding. 
So the project begins with learning a system of relation. What makes a fact relevant? Why am I reading this story? Or this news article? The writer wrote the story because it relates to that writer's system of values and meaning: what is the writer's system of values and meaning? Do I share that system? These are questions we never learn to ask. Not in school, God knows. My wife and I, homeschooling our two young children, often look at the mountain of educational resources and sigh in anticipatory exhaustion: how can we hope to climb this mountain? How can we possibly teach our children all of this? But this is precisely the wrong question. Our job is not to carry them up the mountain. Our job is first to show them the mountain. And then wait for them to tell us what part they might like to start climbing. And then help them like crazy to climb, as high as they want to go. 
That's one part of education. The other is the system of values and meaning. Otherwise we become susceptible, like Kurtz in Joseph Conrad's Heart of Darkness, to the whisper coming from the emptiness, appealing to the emptiness within. "There was something wanting in him—some small matter which, when the pressing need arose, could not be found under his magnificent eloquence. ... the wilderness... echoed loudly within him because he was hollow at the core…." 

Hollowness begins with the inability to relate -- to relate facts into a system of beliefs, and to relate beliefs to a sense of meaning. "Orwell feared," wrote Neil Postman, "that the truth would be concealed from us. Huxley feared the truth would be drowned in a sea of irrelevance." Irrelevance, and in, the lack of relation. The destruction of knowledge of the individual's relation to the world, to the beyond. That is the fate to be feared; it is the fate to be avoided at all costs; and yet it is the fate we are rushing toward with reckless abandon.

Tuesday, March 12, 2019

Part V: The Mystery of DC & MD v Trump

DC & MD v. Trump,
Civ. A. No. 8:17-cv-01596-PJM (D. Md. filed June 12, 2017) (Messitte, J.)

Yesterday, I discussed how Judge Messitte prevailed on Plaintiffs to amend their complaint and to file a second claim—the second one against the President in his individual capacity. Today, I want to discuss what has happened (so far) to that individual capacity claim during the litigation in the trial court and in the court of appeals.

As explained, Judge Messitte was responsible for adding the individual capacity claim against the President. He was also responsible for trying to dismiss that claim at the eleventh hour. This is what happened.

Judge Messitte denied the Department of Justice’s (“DOJ’s”) motion to dismiss the official capacity claim. The President’s counsel had a separate motion to dismiss. It was fully briefed. The President’s counsel asked to participate in the already scheduled oral argument on the DOJ’s motion. Judge Messitte denied that request. Judge Messitte refused to hold a separate hearing on the President’s motion. Likewise, Judge Messitte refused to rule on the motion itself; his inaction lasted well over 6 months. Nevertheless, Judge Messitte ordered the parties to go forward with discovery—all while the President’s motion remained both unheard and unresolved. In response, the President’s counsel filed an appeal. The President’s counsel’s position is that Judge Messitte’s moving forward with discovery, without having first ruled on the President’s motion to dismiss, amounts to constructive denial of the President’s motion. If the President’s counsel’s position is correct, that would give the President an immediate right of appeal (at least) in regard to the President’s unique immunity and immunity-related defenses. A notice of appeal having been filed, one would have expected Judge Messitte to have considered himself divested of the matter; one would have expected Judge Messitte to have left the case in the hands of the United States Court of Appeals for the Fourth Circuit. At least, that is what I would have expected.

But, I am not Judge Messitte. Instead, this is what he did. Judge Messitte, sua sponte, ordered both parties to address “whether the Court can dismiss without prejudice the claims against President Trump in his individual capacity, and if so, whether it should do so.” It was not hard for Plaintiffs to read between the lines. Two days after Judge Messitte issued his sua sponte order, the Plaintiffs (once again) did precisely what they were told: Plaintiffs moved to “voluntarily dismiss without prejudice the above-captioned action against Donald J. Trump in his individual capacity to allow the claims against President Trump in his official capacity to move forward expeditiously.” (emphasis added).

I do not know why Judge Messitte took this course of action. But if I had to guess this is what I would say. Judge Messitte denied the President his day in court, and when it looked like the President’s counsel was going to get his day in front of another court, Judge Messitte actively sought to frustrate those efforts. To put it another way, Judge Messitte, and all the parties, and all the amici, and all sophisticated observers know—we all know that this lawsuit was not brought by Plaintiffs in the hopes of prevailing on the merits. Plaintiffs would be happy with such a victory if it should come their way, but that is not why they brought this lawsuit. This lawsuit’s primary goal was and remains an effort by Plaintiffs to get discovery against Trump and his commercial entities—to see what (if anything) shakes out. The discovery in this lawsuit ordered by Judge Messitte was put on hold during the appeals process, and when Judge Messitte saw that his efforts to get discovery were being frustrated by the President’s counsel’s filing an appeal, Judge Messitte advised the Plaintiffs how (they might try) to lock the case out of the court of appeals and to put it back in his bailiwick where discovery could proceed, even where he refuses to rule promptly on threshold motions. Again, the President is not litigating against the Plaintiffs: they are little more than passive observers in this action. It appears to me that this litigation is, in reality, between Judge Messitte* and President Trump. Of course, that is all just guesswork on my part.

There is a simple way for all of us to find out what prompted Judge Messitte’s repeated extraordinary interventions in this matter. Judge Messitte could put forward a sua sponte filing with the Fourth Circuit (or even on his own docket) explaining his unusual course of conduct. It would be helpful if the Fourth Circuit would ask him to do so. Transparency is a good thing—for elected officials and also for courts of law.


* For a different characterization of Judge Messitte’s conduct, see: Jed Shugerman, The Supreme Court Could Take a Lesson From the Emoluments JudgeSlate (Apr. 2, 2018, 5:07 PM), <https://slate.com/news-and-politics/2018/04/the-supreme-court-could-take-a-lesson-from-the-emoluments-judge.html> (characterizing Judge Messitte’s decisions in this matter as “hav[ing] the courage to enforce the Constitution” (emphasis added)).

Welcome Instapundit Readers! 

Seth Barrett Tillman, Part V: The Mystery of DC & MD v Trump, New 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 Trump, New 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 Trump, New 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 Trump, New 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. Trump, New 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 in this matter. See 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>; and,

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>.

I have several filings before the Fourth Circuit in this matter. See Motion of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project For Leave to Participate in Oral Arguments, In re Donald J. Trump, and DC & MD v. Trump, App. Nos. 18-2486, 18-2488 (4th Cir. Feb. 27, 2019), ECF No. 52 (App. No. 18-2486), ECF No. 43 (App. No. 18-2488), 2019 WL 979106, <https://ssrn.com/abstract=3340961>;

Brief of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project in Support of Defendant-Appellant, District of Columbia and State of Maryland v. Donald J. Trump, in his individual capacity, App. No. 18-2488 (4th Cir. Jan. 31, 2019), ECF No. 31-1, 2019 WL 411728, 2019 U.S. 4th Cir. Briefs LEXIS 3, <https://ssrn.com/abstract=3314702>; and,

Amicus Brief of Scholar Seth Barrett Tillman and the Judicial Education Project in Support of Petitioner, In re Donald J. Trump, in his official capacity, App. No. 18-2486 (4th Cir. Jan. 29, 2019), ECF No. 28-1, 2019 WL 366219, 2018 U.S. 4th Cir. Briefs LEXIS 11, <https://ssrn.com/abstract=3314703>.