“This life is slow suicide, unless you read.”Herman Wouk

Saturday, February 08, 2020

The Ancients and the Recess Appointments Clause

Certainly, the ancients understood the difference between an officer and an acting officer. See, e.g., 5 Livy: From the Founding of the City (trans. B.O. Foster, reprint 1982):
   Nearly all the annalists state that Fabius was dictator in his campaign against Hannibal; Coelius even writes that he was the first to be created dictator by the people. But Coelius and the rest forget that only the consul Gnaeus Servilius, who was then far away in his province of Gaul, had the right of naming a dictator. It was because the nation, appalled by their great disaster, could not put up with so long a delay that resort was had to the popular election of an acting dictator.
Id. at book 22, ch. 31, at 307. Furthermore, the editor explains: “the erroneous impression that Fabius was in 217 formally elected dictator, whereas he was in fact invested with the powers of a dictator but not with the actual title.” Id. at 307 n.2. Similar considerations may apply to recess appointees. See U.S. Const. art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”).

The above is from: Seth Barrett Tillman, The 1792 Madison-to-Pendleton Letter: A Time for Reconsideration, Reflection, and Response? (Feb. 5, 2020), <https://ssrn.com/abstract=3531075>. 


Seth Barrett Tillman, The Ancients and the Recess Appointments Clause, New Reform Club (Feb. 8, 2020, 3:39 PM), <https://reformclub.blogspot.com/2020/02/the-ancients-and-recess-appointments.html>. 


Friday, February 07, 2020

Different Points of View can both be Correct:



MacArthur on Eisenhower: “the best clerk I ever had.”

Eisenhower on his time as MacArthur’s chief of staff: “I took four years of acting lessons from MacArthur.”

Seth Barrett Tillman, Different Points of View can both be Correct, New Reform Club (Feb. 7, 2020, 3:41 AM), <https://reformclub.blogspot.com/2020/02/different-points-of-view-can-both-be.html>. 

Thursday, February 06, 2020

The 1837 Senate Expunging Resolution


Letter to the Editor


February 6, 2020

RE: Steve Nelson, Republicans planning to expunge Trump impeachment if they win back the House, New York Post (Feb. 5, 2020, 12:34 PM), <https://tinyurl.com/rsk2vx2>.

Your article states: “Backers of the notion point to the House voting in 1837 to expunge a censure of President Andrew Jackson.” That’s not quite right. What happened was that the Senate censured Jackson in 1834. Afterwards, in 1837, a successor Senate expunged from the Senate’s journal the entry for the censure. The House was not involved—nor was the impeachment process.

Sincerely,

Seth Barrett Tillman

Seth Barrett Tillman, The 1837 Senate Expunging Resolution, New Reform Club (Feb. 6, 2020, 2:02 PM), <https://reformclub.blogspot.com/2020/02/the-1837-senate-expunging-resolution.html>. 




Monday, February 03, 2020

Tabulating Cases For and Against the President



One more time: circa 1797-1799, Senator Blount did not resign. He was expelled. He was impeached by the House. The Senate dismissed the articles of impeachment. In the Senate impeachment trial proceedings, there were ZERO witnesses. The dismissal was akin to a Federal Rules of Civil Procedure 12(b)(1) dismissal (for lack of jurisdiction)—where a court can grant dismissal absent witnesses. It is also akin to a 12(b)(6) dismissal (for failure to state a cognizable claim) and a Rule 56 summary judgment dismissal (where there is no dispute as to a material fact). In all these situations, a court of record can dismiss absent witnesses heard in open court.

A chart was circulated widely across the internet and Twitter-law suggesting that all Senate impeachment trials have had witnesses. It left off Blount: the first impeachment and a much studied impeachment. Hard to miss. Once criticized: the chart was defended on the grounds that Blount had resigned. That was not true.

Then it was defended on the grounds that the dismissal in Blount was jurisdictional. But both 12(b)(1) dismissals for absence of jurisdiction and 12(b)(6) dismissals for failure to state a claim are done absent witnesses. So the “jurisdictional” exception made no sense. Trump’s argument was, in part, that what he did was entirely correct, ethical, legal, and constitutional. That is: it was not a constitutional violation. Such a defense is akin to a 12(b)(6) dismissal. That’s akin to Blount.

Eventually, a new chart came out—it included Blount and a few other impeachments which had been left off the first chart—these other Senate impeachment trials involved resignations and so no witnesses were involved in those proceedings.

If one argues that the allegations in the articles of impeachment are not constitutional violations, then that is a traditional question of law. Witnesses are not necessary because the factual allegations are accepted as true for the purpose of the motion. The suggestion by those arguing for witnesses was that a motion to dismiss based on defective impeachment articles is a merits matter which requires witnesses.

Those arguing for witnesses cite no law or precedent for their novel claim. Article III courts dismiss on 12(b)(6) and summary judgment grounds all the time. And do so absent witnesses heard in open court. Everyone knows this.

I am not saying that Senators in the exercise of their judgment and discretion are bound to analogize their position to judicial procedure from courts of record—including federal courts.

What I am saying is that those arguing that once you get past jurisdiction (per Blount), the House managers are entitled to live witnesses as a matter of right is a very strange claim, unsupported by authority, and contrary to the nearest procedural analogues from courts of record.

Those arguing for witnesses next fall back ... was “OK, so the Senate, as a matter of law, could reject having witnesses, but so what?—in the vast majority of prior Senate impeachment trials the Senate heard witnesses, so why not do so here?

One can only cry when hearing law professors launch such an argument. Say a new federal judge reaches the bench. He hears 15 civil cases, and they all survive motions to dismiss and motions for summary judgment. In each of these 15 cases there are witnesses and a jury decision. Now you come into court before that judge representing a new claimant in this judge’s 16th case. Can you argue—“your honor, my claim survived 12(b)(1) challenges . . . so let’s skip a decision on the defendant’s 12(b)(6) arguments and any opportunity for summary judgment . . . why . . . because in all your prior 15 cases you heard from live witnesses in open court.” The judge will simply say that your argument is not a valid argument. In other words, those cases under the rules were strong enough to survive challenges at the initial stage and so those plaintiffs were entitled to witnesses. But for you to get witnesses in your case, you must survive initial challenges to your claim. Every case is assessed individually under the rules.

The fact that most pre-Trump impeachments had witnesses is a way of saying the Senate agreed that the House did its job. Whether the House did its job in the Trump proceedings is a matter for this Senate on the facts presented. You cannot decide that by tabulating prior cases. Everyone knows this.

Yet, here, we see a concerted effort to make an entirely new system of justice for one person. Trump. And the effort failed. And if you want evidence of what I have written here . . . just look at the misrepresentations about Blount, the fake chart, and the unwillingness of those who erred to concede error.

Seth Barrett Tillman, Tabulating Cases For and Against the President, New Reform Club (Feb. 3, 2020, 10:39 AM), <https://reformclub.blogspot.com/2020/02/tabulating-cases-for-against-president.html>; 


PS: You can see the bad chart--thee one failing to list all Senate impeachment trials, including Blount--here: <https://twitter.com/BrianKButler/status/1222654697258930181>. It was produced by Citizens for Responsibility and Ethics in Washington. Of course!

Friday, January 17, 2020

Bribery, Courage, and Cowards—Reflections on Impeachments Past


You wrote: “Was Senator Edmund Ross of Kansas, whom JFK and the Vice President single[d] out, one of those [courageous] men? Definitely not. He was bribed for his not guilty vote. Ross was promised lots of federal patronage if he voted in favor of the President.” That seems pretty bold: Do you have good sources for that?

I thought the standard claim against Ross was that he feared that his already-in-office patronage would be removed by the Senate President Pro Tem should President Johnson be removed and replaced by the SPPT (who was next in the line of succession). Andrew Johnson [if not convicted and removed] would just leave [Rosss] people in the federal offices they already held. That’s hardly a “promise[] [of] lots of federal patronage.” And I am pretty confident that behavior (or, in this case, inaction) does not amount to being “bribed.” Even that more limited claim—that Ross voted in order to keep his people in the Executive Branch and on the federal payroll—has (as far as I know) only threadbare support. What is the support you have for your position? Is it just David O Stewarts book? What exactly was his support?

You also wrote: “These senators [who voted to acquit Johnson] were, in fact, cowards.” I dont see how you can say that about W.P. Fessenden—the chair of the Joint Committee on Reconstruction. He, and the other 6 Republicans who voted to acquit Johnson, committed political suicide against the will of rank-and-file Republicans back in their home states. Everyone knows that. Are you really saying that each and every of the 7 Republican senators who voted to acquit did so because they were bribed or otherwise self-interested? That is hard to square with the fact that each committed political suicide. Do you actually have support for that statement—in regard to each of the 7 seven?

Again, you wrote: “The real profiles in courage were the House impeachment managers, led by John Bingham, who fought body and soul for the Fourteenth Amendment against President Johnsons determined opposition.” I think your statement is something akin to a non sequitur. The opposition Bingham faced in regard to the 14th Amendment was in the House and Senate—where he needed to reach 2/3—and in parts of the country which opposed slavery, but did not support broader moves toward civil [and political] equality across racial lines. Johnson opposed the Amendment, but his support was not necessary to it, as the President does not have a veto power over proposed amendments. This particular partisan fight—the fight over the 14th Amendment—was not the same as the partisan fight over the impeachment of President Andrew Johnson. Kennedys book addressed the latter partisan fight. I do not see how you can make your point stick (about courage and cowardice) by pointing to evidence involving the former. And I think it telling that this is the first evidence you offer in support of your point.

Johnson did things that I think were bad: very bad. Whether his actions warranted impeachment—is another matter. And whether the 7 Republicans voted to acquit him had decent publicly spirited motivations for doing as they did, or did so for self-interested or illegal reasons, or had motivations which were more in a zone of twilight—is something we should carefully consider. Painting ones claims with over broad brush strokes about groups of people—who took their decisions separately—asserting that they were bribed or cowards...I just dont see how that can be the right approach.

Why not put your cards on the table? What precisely do you think Johnson did wrong that warranted his impeachment such that the House managers acted rightly in trying him before the Senate? Was it just his naked opposition to the 14th Amendment? That would be odd.

Seth

Seth Barrett Tillman, Bribery, Courage, and Cowards—Reflections on Impeachments Past, New Reform Club (Jan. 17, 2020, 10:17 AM), <https://reformclub.blogspot.com/2020/01/bribery-courage-and-cowardsreflections.html>;

Responding to Gerard N. Magliocca, Profiles in Cowardice, Balkinization (Jan. 17, 2020, 8:59 AM), <https://balkin.blogspot.com/2020/01/profiles-in-cowardice.html>;

Friday, January 10, 2020

Letter to the Editor (submitted only), Responding to Neal K. Katyal and George T. Conway III, Why Is Mitch McConnell So Afraid of John Bolton?


Letter to the Editor
letters@nytimes.com

January 10, 2020

Re: Neal K. Katyal and George T. Conway III, Why Is Mitch McConnell So Afraid of John Bolton?, The New York Times (Jan. 7, 2020), <https://www.nytimes.com/2020/01/07/opinion/john-bolton-testify.html>.

Katyal and Conway ask: Why the Republican-led Senate and its leadership have expressed an unwillingness to call John Bolton as a witness in the yet-to-be-held impeachment inquiry? But the better question remains why the Democratic-led House has not done that very thing. Because impeachment proceedings have not yet begun, there is still an opportunity for the House’s would-be impeachment managers to call Bolton as a witness and to add his testimony to the record which (one anticipates) will be sent to the Senate. If the Democratic-controlled House is unwilling to exercise its subpoena powers, then there is no cause to fault the Republican-controlled Senate.

It has always been the House’s duty to establish a complete record justifying its decision to impeach the President.

Seth Barrett Tillman



Seth Barrett Tillman, Letter to the Editor (submitted only), Responding to Neal K. Katyal and George T. Conway III, Why Is Mitch McConnell So Afraid of John Bolton?, New Reform Club (Jan. 10, 2020, 5:52 AM), <https://reformclub.blogspot.com/2020/01/letter-to-editor-submitted-only.html>; 

Thursday, January 09, 2020

An E-mail to Professor Hathaway

I remain somewhat puzzled by your reticence and the reticence of other critics of the President. The AP quoted you as saying: “Trump’s threat amounted to ‘a pretty clear promise of commission of a war crime.’” See <https://apnews.com/8d3385ab6c29c3da3ab9b081bae53884>. And here <https://twitter.com/oonahathaway/status/1213924990254551046>, you wrote that Trump’s “tweet threatens to break several laws.” Does the tweet, which you characterize as a threat or promise,” actually break any laws, including the law of land warfare and/or the 1907 [Geneva] Convention? Or, are you making just a slippery slope argument, i.e., the tweet puts one-and-all on notice that Trump will [or is likely to] break the law (even if he has not done so yet)? 

I don’t really understand your position.

Seth

Seth Barrett Tillman, An E-mail To Professor Hathaway, New Reform Club (Jan. 9, 2020, 4:22 AM), <https://reformclub.blogspot.com/2020/01/an-e-mail-to-professor-hathaway.html>. 

Monday, January 06, 2020

Second Thoughts About Religious Tests




You wrote that the members of the North Carolina legislature in 1809 who sought to enforce the protestants-only religious test against its Jewish member, Jacob Henry, “really do look stupid.”

They certainly look stupid to Americans today. And they were at risk of looking stupid to many of their more broad minded contemporaries. Still, I think you are being overly judgmental, if not harsh. They were placed in a position which required their enforcing a bad legal rule. That is always difficult. I could be wrong, but my sense from fairly extensive contacts with a broad range of Jews in the UK ... is that most are quite attached to the monarchy ... along with the monarch being head of the Anglican Church. Were the Queen to publicly and actively become an atheist/agnostic or to convert to a non-Christian religion (including Judaism) or to affiliate with a church not in communion with the established church, I think most Jews in the UK would expect (in the normative sense) her to abdicate, much like Edward VIII did. I am not expert in UK law, but if the Queen converted out, I think statutes would come into play displacing her from her position—even if she did not abdicate. If British government officials enforced those statutes on this point, I would think it would be a somewhat unfortunate result and a bad law to boot. I also think most British Jews would be loath to call those charged with enforcing settled-law (about which the enforcers might even personally disagree) bigots or stupid. Of course, such a result—based on a religious test—is wholly un-American, which is precisely the point. North Carolina in 1809 with its House of Commons and its two members for the counties and one member for the towns was modelled on Blake’s England: it was still midstream between an older British identity and now modern American identity.

Seth Barrett Tillman, A Religious Test in America?: New Sources on the 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat (submitted for 2020 publication), <https://ssrn.com/abstract=3498217>.

Seth Barrett Tillman, Second Thoughts About Religious Tests, New Reform Club (Jan. 6, 2020, 1:53 PM), <https://reformclub.blogspot.com/2020/01/second-thoughts-about-religious-tests.html>.