A Gracious Article III Judge

After sending a copy of one of my recent publications to an Article III judge who I had criticized, the judge wrote back: 

“So fascinating—thank you for sending! For what it is worth, I often (and [I] did in [my recent published decision]) use the citation forms from Hart & Wechsler—see page ____ of the 7th edition. Perhaps consider adding Hart & Wechsler to your footnotes? When I err, I like to be in their company. And in any event, I am grateful for the education on this topic and [I] will cite your article the next time [the same issue] comes up.”

Seth Barrett Tillman, ‘A Gracious Article III Judge,’ New Reform Club (Jan. 26, 2023, 5:07 AM), <https://reformclub.blogspot.com/2023/01/a-gracious-article-iii-judge.html>;

Professor Laurence Tribe is Shocked! Shocked!!

 

Professor Laurence Tribe writes: “Right. The Justices evidently weren’t interviewed!” See <https://twitter.com/tribelaw/status/1616294504373387268>.

I responded: “It is simple. What positive rule of law forbids a Justice from releasing or authorizing the release of the purportedly ‘leaked’ materials? What federal law or enforceable rule would have been violated?” 

Peter Hurley replied with: “18 USC [Section] 2071, for one. Moreover, the court has broad authority to investigate contempt or obstruction of its processes. If a Justice undertook to influence the outcome of a proceeding by divulging information and lying about it, that is within the Court’s purview.” 

Tillman: I don’t think Section 2071 works. First, Section 2071 is limited to documents which are “filed or deposited” with any clerk or public officer. Draft opinions are internally generated documents. See United States v. Sater, No. 98 Civ. 1101, 2019 WL 3288389, at *2 n.3 (E.D.N.Y. July 22, 2019) (distinguishing, in a non-Section 2071 context, internal court documents such as “early, unpublished drafts of judicial opinions” from filed documents). Second, Section 2071 is limited to “conceal[ing], remov[ing], mutilat[ing], obliterat[ing], or destroy[ing] documents—I don’t know that that language extends to releasing an electronic copy of an original. Third, violations of Section 2071 are predicated on the defendant’s having had acted “unlawfully,” which would seem require a violation of some other statute, otherwise 2071 is circular in regard to what is “unlawful.” So your (Peter Hurley’s) referencing Section 2071 as the criminal violation involved in the “leak” appears insufficient. You need to put forward some other statute that precludes a Justice from releasing or authorizing the release of a draft opinion. 

Now, if the alleged “leak” or release of the draft Dobbs opinion involved some sort of bribe or a solicitation of an actual payment in money or other property, then that is an entirely different situation, and it would be a likely legal violation. But nothing like that has been alleged. 

You wrote: “If a Justice undertook to influence the outcome of a proceeding by divulging information and lying about it, that is within the Court’s purview [to investigate].” Your argument is circular. If a Justice undertook to influence an opinion by writing a journal article or giving a speech on a legal issue sub judice, that would be entirely legal. If a Justice—not under oath—denied that his motivation for giving such a speech was to influence current litigation and that denial was a lie, then there is no legal violation, and there is nothing to investigate. Although lying is not a good thing, not every lie is a crime or even sufficient to justify an investigation, with its concomitant use of government time and resources. Generally, the investigatory bodies of the legal system do not put people under oath, against their will, absent a credible allegation that some crime, tort, or other cognizable legal wrong is at issue. 

Again: If a Justice released or authorized the release of the draft Dobbs opinion, what federal crime is that? What cognizable legal violation would that be? 

As for your position that “the court has broad authority to investigate contempt or obstruction of its processes,” I think such language usually refers to a contempt in open court and to physically impeding a court officer from carrying out extant duties. What “contempt” in open court is involved here? Which court officer and what specific duties were physically impeded by the release of the draft Dobbs opinion? 

Turning arguably bad or unexpected conduct into a crime after-the-fact because no one thought to criminalize it before-the-fact violates ex post facto norms and, perhaps, the Ex Post Facto Clause. So again, I ask what is the possible federal crime which is being alleged on the facts now known to the public? And on what basis is that sufficient to investigate the Justices?

And if, after all this time, no federal crime, or tort, or other cognizable legal wrong can be credibly alleged, the better question to ask is what kind of society and legal system investigates people for behavior that is not criminal and not tortious? 

Seth

Seth Barrett Tillman, ‘Professor Laurence Tribe is Shocked! Shocked!!,’ New Reform Club (Jan. 20, 2023, 3:40 AM), <https://reformclub.blogspot.com/2023/01/professor-laurence-tribe-is-shocked.html>;

 

See also: Seth Barrett Tillman, ‘If you are a prosecutor or former prosecutor every wrong looks like a federal criminal offense,’ New Reform Club (May 5, 2022, 3:33 AM), <https://reformclub.blogspot.com/2022/05/if-you-are-prosecutor-or-former.html>; 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, ‘This Is What Is Wrong With The American Judiciary,’ New Reform Club (Mar. 16, 2017, 4:23 AM), <http://tinyurl.com/z4q9f8v>. 

Some Biden-related questions no one seems to be asking?

Were the Biden documents declassified? If ‘yes,’ by whose authority and what evidence (if any) is there that this authority was actually exercised?

Can President Biden ratify his past conduct by retroactively declassifying the documents?

Can the President pardon his own prior conduct, particularly where the conduct arises in connection with his former service in another administration? 

What (if any) non-statutory continuing (fiduciary) duties do former elected-officials, appointed-officers, and government employees-&-agents have involving confidential government communications? See Seth Barrett Tillman, Loyola University of Chicago Law School, Fourth Annual Constitutional Law Colloquium, Six Puzzles for Professor Akhil Amar 15 n.67 (Nov. 1, 2013), <https://ssrn.com/abstract=2173899>.

For the purposes of the Impeachment Clause (Article II, Section 4), and the allegations surrounding Biden’s VP duties, is President Biden a current office-holder or a former office-holder? 

And if President Biden is not a current office-holder for the the purpose of the Impeachment Clause ... Given that President Biden’s woes stem from a position which he formerly held, and that there was a break in his government service between his being VP and P, one asks: “Are former officers impeachable?”

Is there any statute of limitations defense for impeachable offenses? Should the statute of limitations during impeachment proceedings mimic the statutory statutory statute of limitations where the alleged impeachable offense is a federal criminal offense? (Tillman: my tentative answer is “yes.” See also Josh Blackman & Seth Barrett Tillman, ‘Can President Trump be Impeached and Removed on the Grounds of Incitement?,’ Reason—Volokh Conspiracy (Jan. 8, 2021, 3:57 AM), <https://tinyurl.com/y5vz3d6o>.)

Is there any implied statute of limitations arising from the Constitution itself? 

When (if at all) should Vice President Harris and the members of the cabinet begin to discuss the applicability of Amendment 25? Think “Corvette”.

What is the scope of statutory disqualification: 18 U.S.C. Section 2071? See Seth Barrett Tillman, ‘Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications,’ 5(1) Br. J. Am. Leg. Studies 95 (2016) (peer review), <https://ssrn.com/abstract=2679512>.

What is the scope of Senate-imposed disqualification arising in connection with impeachment proceedings? See Seth Barrett Tillman, ‘Originalism & The Scope of the Constitution’s Disqualification Clause,’ 33(1) Quinnipiac L. Rev. 59 (2014), <https://ssrn.com/abstract=2484377>. 

Can the U.S. Department of Justice investigate, indict, and prosecute, and can the federal courts try, convict, and sentence a sitting President for acts unrelated to his current term of government service? If the answer to any of these questions is ‘no,’ then is the relevant statute of limitations tolled until the President’s term ends (or until the President otherwise leaves his post)? 

Is anybody discussing the virtues of bringing back independent counsels? 

Seth Barrett Tillman, ‘Some Biden-related questions no one seems to be asking?,’ New Reform Club (Jan. 15, 2023, 4:55 AM), <https://reformclub.blogspot.com/2023/01/some-biden-related-questions-no-one.html>; 

Confidential Government Communications

 

 

Extract on confidential government communications from: Seth Barrett Tillman, Loyola University of Chicago Law School, Fourth Annual Constitutional Law Colloquium, Six Puzzles for Professor Akhil Amar (Nov. 1, 2013), <https://ssrn.com/abstract=2173899>:

One of my correspondents compared [President] Washington’s accepting these foreign gifts with his taking possession of state papers at the end of his second term. The two situations are not akin. The Constitution is silent with regard to state papers; it is not silent in regard to foreign gifts. Moreover, Washington had a strong claim to “his” papers. [Albeit,] [h]e had a continuing (fiduciary) duty to protect confidential communications. He could have believed that he was better situated to do so than his successor (who was not a party to those communications). Cf. Folsom v. Marsh, 9 F. Cas. 342, 347 (C.C.D. Mass. 1841) (No. 4,901) (Story, J.) (discussing confidentiality concerns in regard to the publication of former presidents’ and other state papers). See generally Title to Presidential Papers, 43 Op. Att’y Gen. 11 (1974) (Saxbe, Att’y Gen.).

Six Puzzles, at 15 n.67 (emphasis added).

Seth Barrett Tillman, Confidential Government Communications, New Reform Club (Jan. 15, 2023, 4:21 AM), <https://reformclub.blogspot.com/2023/01/confidential-government-communications.html>; 

A Twitter Exchange on “Insurrection”

My response:

Your proposed definition of “insurrection” is certainly one possibility. But I wonder if your proposed definition is overbroad?

Under your proposed definition of “insurrection,” in relation to the events involving the American Civil War and Ex parte Merryman in 1861, would not President Lincoln, Generals Winfield Scott, William Keim, and George Cadwalader, Colonels R.M. Lee and Samuel Yohe, and Lieutenant William Abel—all be guilty of insurrection—for preventing the federal courts from hearing habeas corpus applications? And from granting them? See Ex parte Merryman, 17 F. Cas. 144 (1861) (No. 9487) (Taney, C.J., in chambers), <https://tinyurl.com/ms6x7fnd>.

Under your proposed definition, if protesters in a U.S. Senate bathroom block, frustrate, or impede a senator from attending a floor vote, is that an insurrection?

Under your proposed definition, if protesters surround a federal courthouse and impede judges, other courthouse functionaries, and employees, litigants, and other members of the public from ingress and egress, is that an insurrection? Does it matter if some launch pyrotechnics against the building?

Under your proposed definition, if state judges and other court officers establish and put into effect a policy of secreting witnesses and aiding their leaving the state courthouse in order to frustrate their capture by federal immigration officers’ seeking to enforce federal law … is that an insurrection? 

I think under your proposed definition, all the defendants in each of my four “hypotheticals” would be in real danger of conviction for insurrection. That’s why I think your definition may be overbroad. 

If all that stands in the way of liability in each of these four situations is whether the expressive or political content of the defendants’ actions is valued by the prosecutor, then your definition is problematic. Indeed, each of my “hypotheticals” is based on real-world events. But I do not think any actual prosecutors, state or federal, sought to try any of the real-world defendants for insurrection or anything like insurrection. 

You might be better off (using the yardstick of customary rule-of-law norms) with more politically neutral theories of liability: trespass, trespass to chattel, conversion, theft, etc.

On the other hand, if the entire reason one is seeking a conviction for insurrection is to bring about a political disability, then the downside is that the prosecutor will put in motion a series of political and politicized proscriptions and counter-proscriptions. Something like Rome during and after the Second Triumvirate. See generally Josh Chafetz, Impeachment and Assassination, 95 Minn. L. Rev. 347 (2010); Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Clev. St. L. Rev. 285 (2013).

Now, going back to your definition ... I understand the position that the January-6th defendants were “a large group of persons whose purpose [was] to prevent the execution of the law.” But I don’t clearly understand what you mean by an “uprising against the authority of the government.” What precisely do these words mean? What does it mean to participate in an uprising against the “authority of the government,” as opposed to an uprising against the “government” itself?

I also have doubts that inchoate insurrection-related crimes (eg, attempt, conspiracy, solicitation), as opposed to insurrection itself, fall under the aegis of Section 3 of the Fourteenth Amendment. Is it sensible in regard to political disabilities to move beyond what the plain text permits?

I am so old I remember ... when progressives objected to temporary political disabilities imposed for felonious conduct after conviction in due course of law before a judge with life tenure and a unanimous jury based on evidence proving every element of a criminal offense beyond a reasonable doubt. Yet now, some think it proper to impose permanent political disabilities based on determinations by judges (including even administrative law judges lacking life tenure), absent juries, merely using the ‘more-likely-than-not’ civil standard. Under these conditions, I think the proscriptions and counter-proscriptions of the Second Triumvirate are about the best we can hope for. 

Seth Barrett Tillman, ‘A Twitter Exchange on “Insurrection,”’ New Reform Club (Jan. 3, 2023, 6:07 AM), <https://reformclub.blogspot.com/2023/01/an-exchange-on-insurrection.html>; 

Twitter: <https://twitter.com/SethBTillman/status/1610232869498281984>;

60 Minutes

 

Seth Barrett Tillman, ‘60 Minutes,’ New Reform Club (Jan. 2, 2023, 13:49 PM), <https://reformclub.blogspot.com/2023/01/60-minutes.html>; 

Tweet: <https://twitter.com/SethBTillman/status/1609882283770609664>;

A Letter to David Cay Johnston at the Daily Beast

 

David Cay Johnston, ‘Trump’s Taxes Are the Best Case Yet for Putting Him in Prison,’ Daily Beast (Dec. 31, 2022 11:18 AM ET updated), <https://tinyurl.com/bdhj239v>;

Dear Mr Johnston,

You wrote: “Another excellent reform would be making public the tax returns of Cabinet members, federal judges, Senators, and Representatives. It would surely deter the dishonest from seeking to hold office, which is a good policy.” I don’t think your suggested proposal would be constitutional in regard to members of Congress: that is, elected officials whose qualifications are set by Article I of the Constitution. It is the very same issue which applies to the presidency and its Article II qualifications—such qualifications are exclusive and cannot be amended by statute or federal regulation.

You also wrote: “The Trump tax returns also reinforce that Congress should pass a law directing the IRS to make public years of income tax returns for any presidential candidate who meets a low threshold—say, winning two primaries, or being nominated by a political party.” I think this proposal would fail to pass constitutional muster under the rationale announced in U.S. Term Limits v. Thornton and, more broadly, under the First Amendment (as interpreted by the Supreme Court post-Buckley v. Valeo)—that is, ballot control, control over primaries, participation in primaries, and participation in the wider political process are no basis to sidestep the exclusivity of the qualifications set out in Articles I and II. Did any practitioner or academic (Professor Tribe?) suggest to you that your proposed strategy might be constitutional—as a successful workaround in regard to the Supreme Court’s decision in Powell v. McCormack and its progeny? By the way, you may remember that California enacted a statute along the lines you suggest—it was struck down, as unconstitutional, back in 2019, by the (fairly liberal) California Supreme Court. 

Finally, you wrote: “Perhaps most glaring in the tax returns is that they include 26 Trump businesses—or imaginary businesses—with zero revenue and hundreds of thousands of dollars in tax deductions for expenses.” Were these businesses start-ups? Or, possibly, second round finance projects? That might explain why they had no reported revenue. And could you not investigate to see if these businesses really exist before suggesting that they do not exist? At this juncture, can you point to even one specific entry in any of Trump’s tax filings which you know to be fraudulent or, even, merely in error? That being the situation, your article’s title mentioning “prison” seems overly ambitious given what is now known about Trump’s past tax filings.

Seth

PS: You have cited my material in the past. See David Cay Johnston, It’s Even Worse Than You Think: What the Trump Administration Is Doing to America 30, 305 (2018), <https://tinyurl.com/2p8bn8hr>. 

Seth Barrett Tillman, ‘A Letter to David Cay Johnston at the Daily Beast,’ New Reform Club (Jan. 1, 2023, 9:29 AM), <https://reformclub.blogspot.com/2023/01/a-letter-to-david-cay-johnston.html>.

Today’s Global Warming Insight

Here is a United Press International (UPI) article on global warming: Matt Bernardini, ‘More than half of Antarctica’s plant and animals could disappear due to climate change,’ United Press International (Dec. 22, 2022, 7:00 PM), <https://tinyurl.com/47746py4>. 

This article was labelled “Science News.” Subsequently, it was picked up on MSN <https://tinyurl.com/5ykdb8tx>, across Twitter, and elsewhere.

The UPI story leads with a picture. You can see the (licensed) photograph at the link to the original UPI article above and also here: <https://tinyurl.com/bdewj8t2>. The label under the picture in the original UPI article states: “A new study shows that Antarctica is at risk of losing 65% of its plant and animal life by the end of the century if fossil fuel emissions are not reigned [sic] in. Photo from NASA/UPI | License Photo”. (bold added)

The photograph has two problems. 

First, it is a plain ice sheet. It shows no obvious signs of life—animal or vegetable. There is not a lot there—at least, not a lot visible to the human eye—for global warming to harm or destroy. Second, it is—apparently—a picture from the “Arctic region of the Norwegian archipelago Svalbard,” not Antarctica. The picture is from the wrong continent. 

Why do these people think it is their role to educate us? Why?

Seth Barrett Tillman, ‘Today’s Global Warming Insight,’ New Reform Club (Dec. 23, 2022, 3:35 AM), <https://reformclub.blogspot.com/2022/12/todays-global-warming-insight.html>; 

Roger & Me (responding to Beschloss)

 

‘Roger & Me (responding to Beschloss),’ New Reform Club (Dec. 23, 2022, 2:43 AM), <https://reformclub.blogspot.com/2022/12/roger-me-responding-to-beschloss.html>; 

Twitter: <https://twitter.com/SethBTillman/status/1606192728949239808>

On Afghanistan

 

Seth Barrett Tillman, 'On Afghanistan,' New Reform Club (Dec. 13,2022, 1:53 AM), <https://reformclub.blogspot.com/2022/12/on-afghanistan.html>; 

Is social science more social than science?

A decision theorist was struggling whether to accept an offer from a rival university or to stay. His colleague took him aside and said, “Just maximize your expected utility – you always write about doing this.” Exasperated, the decision theorist responded, “Come on, this is serious.”

The joke works because, unlike the hard sciences, the social sciences have served up too little nourishment to satisfy a critical mind. Years ago, a researcher proved – using commonly-accepted practices – that eating chocolate makes you lose weight. The social and pop scientists can prove anything if they are only ever required to produce a theory, rather than actual results.

Theirs is the legacy of the magicians, who proved not by results or common sense, but by fantastic-sounding theories. This was the fount of Twain's humor in A Connecticut Yankee in King Arthur's Court where, in but one comical example, the yankee set out to investigate what evil spell had been cast on the town's well, declared magical by the town's monks, only to find – simply by looking with his own two eyes – the water had escaped through a simple fissure:

"He did everything by incantations; he never worked his intellect. If he had stepped in there and used his eyes, instead of his disordered mind, he could have cured the well by natural means, and then turned it into a miracle in the customary way; but no, he was an old numskull, a magician who believed in his own magic; and no magician can thrive who is handicapped with a superstition like that."

Plus ça change. Even today, a social problem may be defined as a situation in which the real world differs from the theories of intellectuals. And how often do theories stray from the real world? Social psychologist Phillip Tetlock's famous study proved that when grouped together, experts' predictions were worse even than those of dart-throwing monkeys! https://lnkd.in/gAVkgws2.

The number of the world's social problems, then, bears a curious relationship to the number of social theories.

Fortunately, the social sciences supply the antidote to their own folly, and that is through the humility supplied by the study of history. The distinguished British historian Paul Johnson put it well:

"The study of history is a powerful antidote to contemporary arrogance. It is humbling to discover how many of our glib assumptions, which seem to us novel and plausible, have been tested before, not once but many times and in innumerable guises; and discovered to be, at great human cost, wholly false."

New Article(s)

Seth Barrett Tillman, ‘East Wall and the Plantations: Ireland and Its New Migrants,’ The American Spectator (Dec. 6, 2022, 10:48 PM), <https://spectator.org/ireland-new-migrants-east-wall/>, <https://spectator.org/author/seth-barrett-tillman/>, <https://ssrn.com/abstract=4296073>;

Next up:

Andrew Hirsch and Seth Barrett Tillman, ‘More War or EU Expansion?,’ Copenhagen Post (forth. circa Dec. 8, 2022) (print), Copenhagen Post Online (forth. circa Dec. 10, 2022), <https://cphpost.dk/> (English-speaking newspaper in a Danish venue); 

and,

Seth Barrett Tillman, What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others), 13(1) Br. J. Am. Leg. Studies (forth. circa Mar. 2024) (peer review), <http://ssrn.com/abstract=4157572>; 

Seth

Seth Barrett Tillman, ‘New Article(s),’ New Reform Club (Dec. 7, 2022, 8:32 AM), <https://reformclub.blogspot.com/2022/12/new-articles.html>;