Harry Potter and the Constitution’s Text

 

 

Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113, 114–15 (1995) (“As a textual matter, each of these five formulations [in the Constitution] seemingly describes the same stations . . . the modifying terms ‘of,’ ‘under,’ and ‘under the Authority of’ [used in regard to the terms ‘offices’ and ‘officers’] are essentially synonymous.”); Steven G. Calabresi, Response, The Political Question of Presidential Succession, 48 Stan. L. Rev. 155, 160 (1995) (“The Constitution does not contemplate a weird [!] distinction between ‘Officers of the United States’ [as used in the Appointments Clause] and ‘Officers of the Government of the United States [as used in the Necessary and Proper Clause].’”); Michael B. Rappaport, The President’s Veto and the Constitution, 87 Nw. U. L. Rev. 735, 754 n.73 (1993) (“The term ‘votes’ [in the Orders, Resolutions, and Votes Clause] apparently did not even have a specific historical meaning . . . .”); cf., e.g., Richard D. Friedman, Some Modest Proposals on the Vice-Presidency, 86 Mich. L. Rev. 1703, 1720 n.72 (1988) (“Probably not much weight should be put on the term ‘appointment’ . . . .”). 

Compare Akhil Reed Amar, America’s Constitution: A Biography 172 (“Madison buttressed this argument [against legislative officer succession] by stressing Article II’s slightly stilted syntax, which authorized Congress to declare ‘what officer,’ as opposed to ‘which officer’ . . . .” (quoting Letter from James Madison to Edmund Pendleton (Feb. 21, 1792), in 14 The Papers of James Madison 235, 236 (Robert A. Rutland et al. eds., 1983))), with Bowaman v. Reeve, (1721) 24 English Reports 259, 261 (Chancery) (Harcourt, L.C.) (“[T]hey must take what part they think fit in satisfaction of their debts . . . .” (emphasis added)), 1 Robert Burns, The Works of Robert Burns 112 (Liverpool, M’Creery 1800) (“[A]nd who can chuse what book he shall read . . . .” (emphasis added)), John Dickinson, An Essay on the Constitutional Power of Great-Britain over the Colonies in America 391 n. (Philadelphia 1774) (“Every man’s children being by nature as free as himself . . . may . . . choose what society they will join themselves to . . . [and] what commonwealth they will put themselves under . . . .” (emphases added) (quoting John Locke)), and 6 J.K. Rowling, Harry Potter and the Half-Blood Prince 271 (2005) (“ ‘Magic?’ [Tom Riddle] repeated in a whisper. ‘That’s right,’ said [Albus] Dumbledore. ‘It’s . . . it’s magic, what I can do?’ [said Riddle] ‘What is it that you can do?’ [said Dumbledore]” (emphasis added)). 

Whether the Constitution’s language was “stilted,” as suggested by Professor Amar, depends on whether its original audience was more like Rowling’s (and Dickinson’s and the eighteenth century English Court of Chancery’s) or more like Amar’s Stanford Law Review audience. Cf. Mary Sarah Bilder, James Madison, Law Student and Demi-Lawyer, 28 Law & Hist. Rev. 389 (2010) (taking a more linguistically exacting approach as suggested here).

Seth Barrett Tillman, ‘Harry Potter and the Constitution’s Text,’ New Reform Club (Dec. 4, 2025, 1:00 PM), <https://reformclub.blogspot.com/2025/12/harry-potter-and-constitutions-text.html>; 

CHAT GPT versus GROK

CHAT GPT:

Tillman asking:

Was ex parte merryman a federal circuit court decision?

ChatGPT said:

Short answer: Yes — technically.

Explanation:

Ex parte Merryman (1861) was not a U.S. Supreme Court decision. It was issued by Chief Justice Roger B. Taney acting in his capacity as a circuit judge for the U.S. Circuit Court for the District of Maryland. At that time, Supreme Court justices “rode circuit” and presided over the federal circuit courts.

So, while it is often discussed as a Supreme Court–level constitutional confrontation, Ex parte Merryman was formally a federal circuit court opinion, not a ruling of the Supreme Court itself.

GROK:

Tillman asking:

Was ex parte merryman a federal circuit court decision?

No, Ex parte Merryman (1861) was not a federal circuit court decision in the modern sense.

It was a ruling issued by Chief Justice Roger B. Taney sitting as a single circuit judge in the U.S. Circuit Court for the District of Maryland, not a decision of a multi-judge appellate circuit court.

Key context:

At that time (1861), U.S. Supreme Court justices “rode circuit” and held circuit court sessions individually in their assigned districts, in addition to their Supreme Court duties.

Taney was the circuit justice assigned to the Fourth Circuit, which included Maryland.

John Merryman had been arrested and detained at Fort McHenry by Union military authorities for alleged pro-Confederate activities.

Merryman’s lawyers filed a petition for a writ of habeas corpus directly with Taney in his capacity as the circuit judge for Maryland.

On May 28, 1861, Taney issued the opinion Ex parte Merryman, ruling that President Lincoln’s suspension of habeas corpus was unconstitutional and that only Congress (not the President) had the power to suspend the writ.

Important points about its status:

It was a single-judge circuit court ruling, not a decision of the full U.S. Court of Appeals (the modern circuit courts did not exist in their current form until the Evarts Act of 1891).

The military commander at Fort McHenry (General Cadwalader) simply ignored Taney’s order, and the Lincoln administration refused to comply.

Because it was issued by a single circuit judge and never reviewed or enforced, it has no binding precedential value as circuit court or Supreme Court precedent.

It is historically significant as one of the most dramatic confrontations between the judiciary and the executive during the Civil War, but legally it is essentially Taney’s opinion from the circuit court bench, not an appellate decision.

In short: Ex parte Merryman was a federal circuit court ruling in the narrow historical sense (issued by a Supreme Court justice sitting as a circuit judge), but it was not a decision of a federal court of appeals or a multi-judge panel, and it carries no formal precedential weight today.

Seth Barrett Tillman, ‘CHAT GPT versus GROK,’ New Reform Club (Dec. 4 ,2025, 9:19 AM), <https://reformclub.blogspot.com/2025/12/chat-gpt-versus-grok.html>; 

Today’s Footnote

In connection with my amicus filings, I found myself on an enemies list. See, e.g., NARAL, The Insidious Power of the Anti-Choice Movement 7 (2018) (citing Tillman’s publications, and amicus briefs filed jointly with the Judicial Education Project and Carrie Severino, Esq.); see also, e.g., James Hohmann, Supreme Court hears oral arguments in Trump ballot access case—2/8, Washington Post (Feb. 8, 2024) (“Hilariously, this is an argument that was actually pushed by this obscure assistant [Tillman adding: associate] professor in Ireland at a law school. His name is Seth Tillman. And he has been writing these law review articles for decades. He was dismissed as a crackpot. People made fun of him.”) (1:04:20ff); id. at 3:29:35 (“pretty obscure Irish legal academic”). For what it is worth, I am a US citizen living abroad, and I am also a legal academic affiliated with an Irish university. Even the foreign media has made efforts to get their digs in. See, e.g., Alastair Campbell and Rory Stewart, Episode 221: The Rest Is Politics (Feb. 21, 2024) (at 36:00–39:00) (citing Tillman’s scholarship’s role in Trump’s election and Section-3 litigation, and characterizing Tillman as a “constitutional fundamentalist”); see also, e.g., Sun Chenghao, 最高法院与特朗普参选资格：争议、走向与影响 / The Supreme Court and Trump’s candidacy: controversy, trends and impact, 美国观察 / American Observer #89, Jan. 19, 2024 (characterizing my co-authored scholarship as the work of “hardline conservatives”). Social media, although not quite an enemies list, was a place for playground level name-calling by domestic and foreign academics. See, e.g., Professor Laurence H. Tribe (Harvard Law School) (@tribelaw), X (formerly Twitter) (Sept. 1, 2017, 7:20 PM), https://twitter.com/tribelaw/status/903804726717841409 [https://perma.cc/GS65-VAYA] (“Another devastating critique of Tillmania by @jedshug.” (emphasis added)); Shane Glackin, Senior Lecturer (University of Exeter, Philosophy) (@eltorosolo.bsky.social) Bluesky (Jan. 28, 2025, 2:06 PM) (reproducing Glackin’s tweet at bottom of Tillman’s post). And sometimes, the glass is half-full. Compare Professor Akhil Amar (Yale Law School) in Charlie Savage, Offbeat Interpretation From Legal Outsider Could Shape Election, New York Times, Feb. 8, 2024, A21 (Amar opining that Tillman’s position is a “gimmick”), with id. (Amar further opining that Tillman is “brilliant” and “one of the genuinely interesting people in the world”).

Seth Barrett Tillman, Today’s Footnote, New Reform Club (Dec. 4, 2025, 3:05 AM), <https://reformclub.blogspot.com/2025/12/todays-footnote.html>;

Who Should Play God?

 

 

Law professors spend a lot of time worrying about the structure of the courts and who should be a judge or Justice. I worry more about who should be a prosecutor.

Here I suggest an institutional reform at the federal level. The position of U.S. attorney in the several federal districts should be chosen from within the pool of federal judges—preferably by those who have already vested in their pension, and if not vested, they should be allowed to return to their judicial post (with senior status) should they be removed from (or otherwise leave) their U.S. attorney post. If they fill out the entire term for which they were appointed (that is, the remainder of the appointing President’s four-year term), then they should go into a well-deserved post-judicial, post-prosecutor retirement. If the appointing President is re-elected to a second term, one immediately following a first term, then the prosecutor should be allowed to continue in his position during that second term. Either way, after the conclusion of the appointing President’s first or second term, retirement should be automatic. 

Under this reform, the position of U.S. attorney could also be chosen from within the pool of state (or territorial) judges who have vested in their state (or territorial) pension, but here, were such an appointee removed prior to the end of the appointing President’s four-year term, state law would control if they could return to their former judicial post.

Additionally, and more importantly, the position of U.S. attorney (but not an acting or temporary U.S. attorney, and not a recess appointee to the post) should be a terminal position. Once held, the person should be permanently ineligible to run for and to hold all other appointed and elected federal positions, including: President, Vice President, Senator, Representative, and presidential elector. A former U.S. attorney could take up the role of U.S. attorney in another federal district or return to his initial district in which he was first appointed should he have left that position.

The goal here is to appoint people to the federal prosecutor’s office who have already left the battlefield of politics. And likewise, the goal is to bar candidates who would use the position of federal prosecutor to seek greater office.

In a time when old norms, if not the rule of law itself, are seen to be dissolving, we would all do well to think about how to shelter what can be protected and what should be saved.

Seth Barrett Tillman, ‘Who Should Play God?,’ New Reform Club (Oct. 13, 2025, 7:15 AM), <https://reformclub.blogspot.com/2025/11/who-should-play-god.html>; 

 

Retractions Responding To My Publications

2024: Michael Stern, ‘The One Where They Mix Up the Bayards,’ Point of Order Blog (Jan. 21, 2024), <https://www.pointoforder.com/2024/01/21/the-one-where-they-mix-up-the-bayards/>; 

2023: Steven Calabresi, Letter, President Trump Can Not Be Disqualified—Prof. Steven Calabresi changes his mind, Wall Street Journal (Sept. 12, 2023, 4:30 pm ET);

2019: Editor’s Note, Presidential Revisionism, Bunk (Aug. 20, 2019 update), <https://www.bunkhistory.org/resources/690?related=492&relationship_name=RELATED>; 

2019: Glenda Gilmore (@GilmoreGlenda), X (formerly Twitter) (Feb. 9, 2019, 11:50 AM), <https://twitter.com/GilmoreGlenda/status/1094201941880643590> [https://perma.cc/J6Q5-93VR]; 

2017: Letter from Counsel for the Legal Historians to Judge George B. Daniels, Citizens for Responsibility and Ethics in Washington v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. filed Oct. 3, 2017), ECF No. 96;

2017: John Mikhail, ‘Our correction and apology to Professor Tillman,’ Balkinization (Oct. 3, 2017, 8:30 PM); 

2017: Jed Shugerman, ‘An Apology to Tillman and Blackman,’ Shugerblog: Law, History, Emoluments, Quo Warranto… plus some family fun (Sept. 23, 2017), <https://shugerblog.com/2017/09/23/an-apology-to-tillman-and-blackman/>; 

2015: Attorney General Michael Mukasey reported on Eugene Volokh & Seth Barrett Tillman, ‘No, Hillary Clinton wouldn’t be legally ineligible for the Presidency even if she had violated government records laws,’ Washington Post—Volokh Conspiracy (Aug. 26, 2015, 12:54 PM); 

MISCELLANEOUS:

2025: See also John C. Yoo, Essay No. 115, The Take Care Clause in The Heritage Guide to the Constitution 421, 423 & n.40, 424 & n.58 (3d ed. 2025) (citing Tillman on Ex parte Merryman in Military Law Review). It appears that Professor Yoo has modified his position, but I am not entirely sure.

2017: See also Seth Barrett Tillman, The Foreign Emoluments Clause—Where the Bodies are Buried: “Idiosyncratic” Legal Positions, 59 S. Tex. L. Rev. 237, 274 n.91 (2017) (invited symposium contribution), <https://ssrn.com/abstract=3096986> (“After hardcopy publication of Professor Nourse’s [2018] article in California Law Review [hereinafter CLR], and in response to my critique and complaints, the student editors at CLR removed these quotation marks from extant electronic reproductions of Nourse’s article. Nonetheless, the student editors refused to publish any response by me in CLR or on CLR Online. Furthermore, I have received no assurances that an errata sheet will be published in any subsequent issue of CLR. Finally, I have no idea if these post-publication changes to Professor Nourse’s article were made with Professor Nourse’s approval, and I have received not one word of explanation from Professor Nourse in regard to all these strange goings-on.”);

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Seth Barrett Tillman, ‘Retractions Responding To My Publications,’ New Reform Club (Nov. 12, 2025, 11:48 AM), <https://reformclub.blogspot.com/2025/11/retractions-responding-to-my.html>; 

See also Seth Barrett Tillman, ‘Responses And Approbations To My Publications,’ New Reform Club (Nov. 12, 2025, 7:52 AM), <https://reformclub.blogspot.com/2025/11/collected-publications-responding-in.html>; 

Responses And Approbations To My Publications

2005: Gary Lawson, Comment, Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause, 83 Tex. L. Rev. 1373 (2005).

2006: Sanford Levinson, Comment, Assuring Continuity of Government, 4 Pierce L. Rev. 201 (2006); 4 U.N.H. L. Rev. 201 (2006).

2007: Brian C. Kalt, Response, Keeping Recess Appointments in Their Place, 101 Nw. U. L. Rev. Colloquy 88–93 (2007), republished in 103 Nw. U. L. Rev. Colloquy 292 (2009).

2007: Brian C. Kalt, Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman, 101 Nw. U. L. Rev. Colloquy 108 (2007), republished in 103 Nw. U. L. Rev. Colloquy 305 (2009).

2007: Aaron-Andrew P. Bruhl, Against Mix-and-Match Lawmaking, 16 Cornell J.L. & Pub. Pol’y 349 (2007).

2008: Steven G. Calabresi, Rebuttal, Does the Incompatibility Clause Apply to the President?, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNUmbra 134, 141–45 (2008).

2008: Steven G. Calabresi, Closing Statement, A Term of Art or the Artful Reading of Terms?, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNUmbra 134, 154–59 (2008).

2008 & 2009: Saikrishna Bangalore Prakash, Response, Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. Const. L. & Pub. Pol’y 143 (2009) (available on Westlaw and LexisNexis); 4 Duke J. Const. L. & Pub. Pol’y Sidebar 35 (2008).

2009: Robert F. Blomquist, Response, Beyond Historical Blushing: A Plea for Constitutional Intelligence, 2009 Cardozo L. Rev. de novo 244.

2009: Steve Sheppard, Response, What Oaths Meant to the Framers’ Generation: A Preliminary Sketch, 2009 Cardozo L. Rev. de novo 273.

2009: Bruce G. Peabody, Response, Analogize This: Partial Constitutional Text, Religion, and Maintaining Our Political Order, 2010 Cardozo L. Rev. de novo 204.

2010: Jeremy D. Bailey, The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman, 33 Harvard J.L. & Pub. Pol’y 169 (2010).

2012: Zephyr Teachout, Rebuttal, Gifts, Offices, and Corruption, 107 Nw. U. L. Rev. Colloquy 30 (2012).

2014: Zephyr Teachout, Closing Statement, Constitutional Purpose and the Anti-Corruption Principle, 108 Nw. U. L. Rev. Online 200 (2014) (formerly known as Colloquy).

2016: Zephyr Teachout, Matters of Debate—The Foreign Emoluments Clause, in The Interactive Constitution (National Constitution Center 2016).

2016: Zephyr Teachout, Room for Debate, Trump’s Foreign Business Ties May Violate the Constitution, New York Times, Nov. 17, 2016, 5:06 PM.

2016: William Baude, Constitutional Officers: A Very Close Reading, Jotwell (July 28, 2016).

2017: Gautham Rao & Jed Handelsman Shugerman, Presidential Revisionism, Slate (July 17, 2017, 5:42 PM).

2017: Declaration of Professor Kenneth R. Bowling, Ph.D. (Exhibit H), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae JEP’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017), ECF No. 85-9, 2017 WL 7964211.

2017: Declaration of John P. Kaminski (Exhibit G), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae JEP’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017), ECF No. 85-8, 2017 WL 7964226.

2017: Declaration of Professor Stephen F. Knott (Exhibit I), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae JEP’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017), ECF No. 85-10, 2017 WL 7964225 (absent any formal citation to Tillman).

2017: Declaration of Professor Robert W.T. Martin (Exhibit J), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae JEP’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017), ECF No. 85-11, 2017 WL 7964229.

2017: Declaration of Michael E. Newton (Exhibit E), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae JEP’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017), ECF No. 85-6, 2017 WL 7964201.

2017: Supplemental Declaration of Michael E. Newton (Exhibit F), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae JEP’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017), ECF No. 85-7, 2017 WL 7964223 (absent any formal citation to Tillman).

2018: Plaintiffs’ Supplemental Memorandum (Brief for Members of Congress), Senator Richard Blumenthal v. Donald J Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-01154-EGS (D.D.C. April 30, 2018) (Sullivan, J.), ECF No. 50, 2018 WL 2042238.

2018: Erik Jensen, The Foreign Emoluments Clause, 10 Elon L. .Rev. 73 (2018).

2018: Andrew Fagal, Thomas Jefferson and the Arabian Stallion: A Research Note on the Third President and the Foreign Emoluments Clause, 1(4) Law & Hist. Review: The Docket (Dec. 2018).

2019: [Judge] Peter J. Eckerstrom, Yes, the Senate Elevated Partisan Political Goals Over Constitutional Text When It Refused to Consider President Obama’s Nominee to Replace Justice Scalia, 21 U. Pa. J. Const. L. 891 (2019), 21(4) U. Pa. J. Const. L. Online 1 (2019).

2019: Jonathan Hennessey, The Foreign Emoluments Clause Applies to the President, Vice President, and All Other Positions in the Federal Government: A Response to Prof. Seth Barrett Tillman (May 14, 2019) (posted on the Social Science Research Network). 

2020: Gerard Hogan (Advocate-General Court of Justice of the European Union) & Hilary Hogan, Legal and Constitutional Issues arising from the 2020 General Election, 63 Irish Jurist 113 (2020) (about 1/2 its pages respond to Tillman).

2020: A Government Lawyer, Yes, Trump’s Shakedown of Ukraine Was Impeachable “Bribery,” Harv. Nat’l Sec. J. Online 1–9 (Mar. 27, 2020).

2023: Ron Fein & Gerard Magliocca, Free Speech For People Issue Report 2023-01, States can Enforce Section Three of the Fourteenth Amendment without any New Federal Legislation, Mar. 2023.

2024: Government’s Response to Professor Seth Barrett Tillman, et al., Amici Curiae Brief in Support of Donald J. Trump’s Motion to Dismiss Based on the Appointment of the Special Counsel, United States of America v. Donald J. Trump, Case No. 23-80101-CR-CANNON(s) (S.D. Fla. Apr. 4, 2024), ECF No. 432, 2024 WL 1490604.

2024: James A. Heilpern & Michael T. Worley, Evidence that the President is an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment, 98(1) S. Calif. L. Rev. 65, (2024) (posted on journal’s website: Mar. 17, 2025).

Approbations:

Letter from Professor Forrest McDonald to Seth Barrett Tillman (2004) (expressing the opinion that my (Tillman’s) position regarding the Order, Resolution, or Vote Clause is “historically absolutely convincing”);

Letter from Professor Forrest McDonald to Seth Barrett Tillman (2009) (“Your argument [that is, the “new” view of Federalist No. 77] is, in my opinion, irrefutable.”); 

Letter from Justice Antonin Scalia to Seth BarrettTillman (2010) (discussing N. Tillman and S. Tillman’s Fragment);

Letter from Justice Antonin Scalia to Seth Barrett Tillman (2012) (discussing Teachout-Tillman exchange on Northwestern University Law Review); 

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Seth Barrett Tillman, ‘Responses And Approbations To My Publications,’ New Reform Club (Nov. 12, 2025, 7:52 AM), <https://reformclub.blogspot.com/2025/11/collected-publications-responding-in.html>; 

See also Seth Barrett Tillman, ‘Retractions Responding To My Publications,’ New Reform Club (Nov. 12, 2025, 11:48 AM), <https://reformclub.blogspot.com/2025/11/retractions-responding-to-my.html>; 

People of the State of New York v. Trump: Briefs and Other Filings (N.Y. App. Div. 1st Dep’t)

Brief for Defendant-Appellant President Donald J. Trump, People of the State of New York v. Donald J. Trump, App. No. 2025-00648 (N.Y. App. Div. 1st Dep’t Oct. 27, 2025), Doc. No. 66, 2025 WL 3015820, <trump-appeal-hush-money.pdf>;

Brief of Professor Seth Barrett Tillman and Landmark Legal Foundation as Amici Curiae in Support of Defendant-Appellant Donald J. Trump, People of the State of New York v. President Donald J. Trump, App. No. 2025-00648 (N.Y. App. Div. 1st Dep’t Oct. 29, 2025) (filed by Robert W. Ray, Esq., of Sterlington PLLC, and J. Andrew Salemme, Esq., of Tucker Arensberg, P.C.), Doc. No. 72, 2025 WL 3028790, <https://ssrn.com/abstract=5652010>; 

Brief for the United States as Amicus Curiae in Support of Defendant Appellant, People of the State of New York v. Donald J. Trump, App. No. 2025-00648 (N.Y. App. Div. 1st Dep’t Nov. 7, 2025), Doc. No. 76, 2025 WL 3253540;

The Manhattan District Attorney’s (Appellee’s) Responsive brief was originally due December 10, 2025. On December 4, 2025, the parties filed a joint stipulation in regard to the schedule for the outstanding briefs. Under the new schedule, the (Appellee’s) Responsive brief is due February 4, 2026 and Trump’s reply is due March 13, 2026. It would appear that oral argument will be held during the April term (of the Appellate Division’s First Department), which begins March 31, 2026. The April term will last for about the next 10 business days. [Passover runs from the evening of Wednesday, April 1, 2026 through the evening of Thursday, April 9, 2026.]

See generally: NYSCEF System: <Document List> 

Seth Barrett Tilman, ‘People of the State of New York v. Trump: Briefs and Other Filings (N.Y. App. Div. 1st Dep’t),’ New Reform Club (Update: Dec. 5, 2025) (Nov. 12, 2025, 4:08 AM), <https://reformclub.blogspot.com/2025/11/people-of-state-of-new-york-v-trump.html>; 

In Today’s Trump-related E-mail

 

In today’s Trump-related e-mail contact:

As I recall, your core argument for why Amendment XIV, Section 3 didn’t apply to Trump was that the President of the United States was not an officer (of the government, I suppose). 

Today, in the New York Times, in an article about the possibility of moving Trump’s so-called hush-money case [from a state court] to [a] [f]ederal court, the writer mentions that Trump’s attorneys are arguing that it should be moved precisely BECAUSE POTUS is a “federal officer.” Here’s the quote: “They also asked him to evaluate whether the law allowed for someone in the president’s situation—a federal officer who was also a defendant—to seek removal to federal court after a trial had been held and a judgment entered.” Here’s the full article: <https://www.nytimes.com/2025/11/06/nyregion/trump-conviction-appeal.html?unlocked_article_code=1.z08.KKd2.oeFuGgfBbVad&smid=url-share>.

We all know Trump often seeks to have his cake and eat it, too, but doesn’t their argument contradict your argument? Whether POTUS is an officer or not should be a binary question with one answer.

Curious to hear your thinking.

My response:

Trump’s lawyers are entitled to make arguments, including arguments about “office” and “officer,” unless those arguments are barred by offensive collateral estoppel and judicial estoppel (as controlled by federal precedent). He is not so barred at this juncture. The reason he is not so barred is that in the Amendment XIV, Section 3 cases the “office”- and “officer”-language was in Section 3, and here in regard to the removal issue, the “officer”-language is in a federal statute. So Trump is not making contradictory arguments. Albeit the two positions are related, but they are not the same. What you call “hav[ing] his cake and eat[ing] it too” is just standard, responsible lawyering—the sort any client would want and is entitled to get. I give Trump’s lawyers a lot of credit—they managed to cite my materials and say I was wrong in a respectful way—without name calling, etc.

See Seth Barrett Tillman, ‘Not Quite Schrödinger’s Cat—At least not yet,’ New Reform Club (Nov. 7, 2025, 2:35 AM), <https://reformclub.blogspot.com/2025/11/not-quite-schrodingers-catat-least-not.html>;

[Former] President Donald J. Trump’s Memorandum of Law in Opposition to the People of the State of New York’s Motion for Remand at v, 2 & n.1, The People of the State of New York v. Donald J. Trump, Civ. A. No. 1:23-cv-03773-AKH, 2023 WL 4046483 (S.D.N.Y. June 15, 2023) (Hellerstein, J.) (citing, and objecting to multiple Tillman-authored and Tillman-co-authored publications) (filed by Todd Blanche, Esq. & Susan Necheles, Esq.), Doc. No. 34, <https://storage.courtlistener.com/recap/gov.uscourts.nysd.598311/gov.uscourts.nysd.598311.34.0.pdf>;

Josh Blackman & Seth Barrett Tillman, ‘Why the Manhattan DA’s Trump Case Cannot Be Removed to Federal Court,’ Lawfare: Hard National Security Choices (May 18, 2023, 8:14 AM), <https://www.lawfaremedia.org/article/why-the-manhattan-da-trump-case-cannot-be-removed-to-federal-court>, <http://ssrn.com/abstract=4452183>.

As for my participation in the Section 3 cases. I made five arguments against its applicability to Trump. The “office” and “officer” argument was the least and last of the five which I argued in my paper on the subject. My primary and lead argument relied on Griffin’s Case (1869)—i.e., that positive enforcement of Section 3 requires a federal statute. See Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 350 (Oct. 2024), <https://ssrn.com/abstract=4568771>, <https://drive.google.com/file/d/1L4YWw4jzLmmYY8Tpg4-LFLXQNlNT3H5m/view>. The same was true in my amicus brief. See Brief Submitted for Professor Seth Barrett Tillman as Amicus Curiae in Support of Petitioner [Donald J. Trump], Trump v. Anderson, Sup. Ct. No. 23-719 (U.S. Jan. 9, 2024) (filed by Professor Josh Blackman et al.), 2024 WL 184282, <https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-719.html>, <https://ssrn.com/abstract=4687495>.

I hope that helps.

Seth

Seth Barrett Tillman, ‘In Today’s Trump-related E-mail,’ New Reform Club (Nov. 9, 2:34 AM), <https://reformclub.blogspot.com/2025/11/in-todays-trump-related-e-mail.html>; 

Not Quite Schrödinger’s Cat—At least not yet

 

My amicus briefs and publications (including co-authored publications) are on both sides of the parallel federal and state Trump election-law-related litigation in: People of the State of New York v. Donald J. Trump, No. 24-2299-cv (2d Cir. Nov. 6, 2025), Doc. No. 104.1, 2025 WL 3096170 (per curiam) (ordering remand); People of the State of New York v. Donald J. Trump, Indictment No. 71543-23, 86 Misc. 3d 810, 224 N.Y.S.3d 832 (N.Y. Sup. Ct. Dec. 16, 2024) (Merchan, J.), appeal filed, App. No. 2025-00648 (N.Y. App. Div. 1st Dept. notice of appeal filed: Jan. 31, 2025) (briefing ongoing). 

Supports Trump’s Appeal In New York State’s intermediate appellate court: 

Brief of Professor Seth Barrett Tillman and Landmark Legal Foundation as Amici Curiae in Support of Defendant-Appellant Donald J. Trump, People of the State of New York v. President Donald J. Trump, App. No. 2025-00648 (N.Y. App. Div. 1st Dept. Oct. 29, 2025) (filed by Robert W. Ray, Esq., of Sterlington PLLC, and J. Andrew Salemme, Esq., of Tucker Arensberg, P.C.), Doc. No. 72, 2025 WL 3028790, <https://ssrn.com/abstract=5652010> (making the argument that Trump’s jury-unanimity rights were violated by Judge Merchan’s jury instructions). 

Seth Barrett Tillman, ‘The Right to a Unanimous Verdict and the Jury Instructions in People v. Trump,’ Just Security (June 10, 2024), <https://www.justsecurity.org/96654/trump-unanimous-verdict/>, <https://ssrn.com/abstract=4850079>. 

Opposes Trump’s Removal of State Prosecution into the Federal Courts: 

Josh Blackman & Seth Barrett Tillman, ‘Why the Manhattan DA’s Trump Case Cannot Be Removed to Federal Court,’ Lawfare: Hard National Security Choices (May 18, 2023, 8:14 AM), <https://www.lawfaremedia.org/article/why-the-manhattan-da-trump-case-cannot-be-removed-to-federal-court> (arguing that the President of the United States is not an “officer of the United States” as that phrase is used in the federal removal statute). 

Josh Blackman & Seth Barrett Tillman, ‘New York District Attorney Bragg Argues That President Trump Was Not An “Officer Of The United States”,’ Reason—Volokh Conspiracy (May 31, 2022, 3:23 PM), <https://tinyurl.com/yv8kybyu> (arguing that the President of the United States is not an “officer of the United States” as that phrase is used in the federal removal statute). 

Josh Blackman & Seth Barrett Tillman, ‘New In Lawfare: “Why the Manhattan DA’s Trump Case Cannot Be Removed to Federal Court”,’ Reason—Volokh Conspiracy (May 18, 2022, 9:43 AM), <https://tinyurl.com/3wkxmj22> (arguing that the President of the United States is not an “officer of the United States” as that phrase is used in the federal removal statute). 

Seth Barrett Tillman, ‘Not Quite Schrödinger’s Cat—At least not yet,’ New Reform Club (Nov. 7, 2025, 2:35 AM), <https://reformclub.blogspot.com/2025/11/not-quite-schrodingers-catat-least-not.html>; 

Clearing Up Linguistic Confusion Involving Older Documents

I also add, that pre-Strunk-&-White (1918), AMERICAN-ENGLISH was much closer to BRITISH-ENGLISH, than it is today. Even today, BRITISH-ENGLISH has no hard-and-fast rules as to the placement of phrases acting as modifiers. Post-Strunk-&-White, we (users of AMERICAN-ENGLISH) are careful to place modifying phrases alongside the object being modified, else, we label them as “misplaced modifiers.” (Thank God!—for Strunk-&-White.) I begin to wonder if this is the source of some element of the confusion here.

Seth Barrett Tillman, ‘Clearing Up Linguistic Confusion Involving Older Documents,’ New Reform Club (Nov. 6, 2025, 5:58 AM), <https://reformclub.blogspot.com/2025/11/clearing-up-linguistic-confusion.html>; 

The Silence of the Criminal Defense Bar

 

 

To me, there is both a technical legal issue here and what you might also call a wider cultural issue, which is: Where is the defense bar in the United States? Usually, when there is a defendant who’s alleging a violation of a serious constitutional right, the defense bar is there, talking about it. Here, there is just utter silence. If the defense bar thinks that this Trump’s jury-unanimity argument is weak, they are certainly not saying it. If the defense bar thinks Trump’s position is strong, again, they are certainly not saying it. They are not shouting from the rooftops.

These are the same litigators who have to go into court when litigating other New York crimes prosecuted against their clients. Trump’s position, if upheld by the courts, would be a very valuable argument with regard to analyzing New York state law. Keep in mind that New York City’s defense bar includes some of the most elite lawyers in the United States, both practicing in the federal courts and the New York state courts.

I’m an academic, and other academics have published on the issue of Apprendi and jury unanimity. I’m in Ireland—I ask: Where are all the American and U.S.-based academics? Every law faculty has professors who teach procedural criminal law and substantive criminal law. Every law faculty has constitutional scholars, and this is a constitutional issue. I can guess as to why there is silence. Is this issue of little moment to them? Is it that they all support Trump and don’t want to say something that might hurt him, or that they oppose him and don’t want to say something that might inadvertently help him? Could either of these be the case?

You don’t even see vanilla analyses of these issues appearing in the major journals or even the professional journals, like the legal newspapers that report news and events of the day with short, neutral analyses. It’s a stone wall of silence on the jury-unanimity issue and that is really telling. I happen to think—and I don’t know this to be the case, as it is more of a sociological or anthropological question—one reason you have this silence is that many know Trump is right on this particular issue, but they are afraid of becoming unpopular by saying it out loud. It is Orwellian, or, perhaps, better described as characteristic of the behavior of primary school students.

….

I think it’s catastrophic, though, in terms of American legal culture that practitioners and others are afraid to talk about what they believe in academic settings and elsewhere beyond academic settings.

It should be that the loudest and most vigorous speech comes from the defense bar. They’re the guys who are constantly saying, “We will defend every single criminal to make sure that every right is protected. Don’t hold it against us that we defend wrongdoers. You could be the next target of a malicious prosecutor.” Here, if they were willing to go out and say, “Trump is guilty, and the jury instructions were correct, and here’s why”—all that would be very interesting. But we don’t even get that. We get nothing. Is it that they simply don’t care—or, even worse, that they are deeply afraid of being unpopular. I don’t know how a defense bar could be successful if popularity is governing their willingness to talk about these issues, irrespective of whether they think Trump’s jury-unanimity rights were violated.

Looking at this from the outside—and I certainly have views about the jury-unanimity issue—there is a larger cultural problem here which is, arguably, more important than the concrete legal issue. At the end of the day, it doesn’t matter whether Trump’s convictions are upheld. If he loses this case, it doesn’t affect whether he is president. He’s in office. The only way to remove him is via a House impeachment and a Senate trial ending in conviction, and I don’t see that happening. For that reason alone, we should be able to have these discussions without being afraid of political consequences because nothing that happens in the court will affect whether Trump is or is not president at this point. And yet, the stone wall of silence is still there. And like I said, it is difficult to explain why it is there.

An extract from: Seth Barrett Tillman, Due Process and New York v. Trump: A Conversation with Professor Seth Barrett Tillman, Clem. L. Rev. Interview (Oct. 29, 2025), <https://www.clemsonlawreview.com/post/due-process-and-new-york-v-trump-a-conversation-with-professor-seth-barrett-tillman>, <https://ssrn.com/abstract=5677364>.

-----------

Seth Barrett Tillman, ‘The Silence of the Criminal Defense Bar,’ New Reform Club (Nov. 5, 2025, 8:17 AM), <https://reformclub.blogspot.com/2025/11/the-silence-of-criminal-defense-bar.html>;

 

What Blackman and Tillman Wrote in March 2024

 

 

 

Special Counsel Smith’s actions taken to date in this case have been unlawful. However, his actions and those of his purported subordinates, may be salvageable by operation of the De Facto Officer Doctrine. Nguyen v. United States explained that the “de facto officer doctrine ... confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” Nguyen v. United States, 539 U.S. 69, 77 (2003) (quoting Ryder v. United States, 515 U.S. 177, 180 (1995)). The cases cited in Nguyen and Ryder concerned challenges to purported “officers of the United States”—all federal judges—whose appointments under the Appointments Clause were in some way defective. See also Griffin’s Case, 11 F. Cas. 7 (C.C.D. Va. 1869) (No. 5815) (Chase, Circuit Justice) (discussing De Facto Officer Doctrine as applied to a state court judge purportedly disqualified under Section 3 of the Fourteenth Amendment in the context of a collateral challenge). Admittedly, it is not entirely clear whether the De Facto Officer Doctrine applies to the facts and circumstances at hand involving a federal prosecutor.

Amici take no position on whether Jack Smith’s work to date can be salvageable by operation of the De Facto Officer Doctrine. That said: as a general matter, the focus of the De Facto Officer Doctrine insulates retrospective conduct, as opposed to prospective conduct. After there is a final judgment declaring that the (purported) Special Counsel is acting beyond his lawful authority, the government may be estopped from seeking to insulate, under the De Facto Officer Doctrine, further unlawful actions taken after an adverse final judgment against the Special Counsel.

Going forward, these Appointment Clause issues can be obviated only if this prosecution proceeds in the regular course under the supervision of the duly-nominated, confirmed, and appointed United States Attorney for the Southern District of Florida. There is no question that such a prosecution would be valid under the Supreme Court’s Appointments Clause jurisprudence. (Other constitutional defenses, such as presidential immunity, remain to be adjudicated.) Perhaps more importantly, prosecuting the Defendant under the auspices of the normal processes involving Department of Justice oversight would bring political accountability to this case.

Whether this prosecution will proceed in the normal course is a policy judgment for the Attorney General and the Department of Justice. It is not a decision this Court needs to reach in deciding Defendant’s motion. 

Extract from: Brief of Professor Seth Barrett Tillman and Landmark Legal Foundation as Amici Curiae in Support of Defendant Trump’s Motion to Dismiss the Indictment, United States v. Trump, Case No. 9:23-cr-80101-AMC-BER (S.D. Fla. Mar. 21, 2024) (filed by Professor Josh Blackman & Michael Adam Sasso, Esq.), ECF No. 410, 2024 WL 1214430, <https://ssrn.com/abstract=4755563>, <https://tinyurl.com/3kju33w4>.

Seth Barrett Tillman, ‘What Blackman and Tillman Wrote in March 2024,’ New Reform Club (Nov. 4, 2025, 4:40 AM), <https://reformclub.blogspot.com/2025/11/what-blackman-and-tillman-wrote-in.html>;