Tillman Responds to the Legal Historians Amicus Brief in CREW v. Trump Emoluments Case

In an amicus brief (supporting Defendant President Trump) submitted to this Court (Southern District of New York), my counsel included the following footnote:

See Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United States (Feb. 26, 1793), in 14 The Papers of Alexander Hamilton (“PAH”), 157, 157–59 (1969), perma.cc/49RT-TTGF. The editors of PAH marked this document “DS,” meaning “document signed,” which indicates that this document was the original signed by Hamilton. The original Hamilton-signed document, on which the PAH reproduction is based, remains in the vaults of the National Archives & Records Administration (Record Group #46). An excerpt of the original Hamilton signed document is available at bit.ly/2rQCDxX. Amicus notes that an entirely different document (but bearing a similar name) can be found in American State Papers (“ASP”). See List Of Civil Officers Of The United States, Except Judges, With Their Emoluments, For The Year Ending October 1, 1792, in 1 American State Papers/Miscellaneous 57 (1834). The document in ASP was not signed by Hamilton. The undated ASP document was drafted by an unknown Senate functionary. Unlike Hamilton’s manuscript, the record in ASP includes the President and Vice President. Both documents are probative of the legal meaning of Office . . . under the United States as used in the Senate order. But the two documents are not equally probative.

I stand entirely behind the above footnote: behind every sentence, every phrase, every word, and every syllable. I have made no mistake, intentional or inadvertent. I retract nothing, and I do not intend to retract anything.

Recently, my amicus brief and scholarship has been criticized by the Legal Historians Brief, other academics, some litigators, and by the press. Here I respond. This document is my declaration submitted as an exhibit to a motion responding to the Legal Historians Brief.

Complete Motion with Supporting Declarations:
https://drive.google.com/file/d/0B6pbwibK31LaN1k4aWw1WEJ0REk/view

Seth Barrett Tillman, The Reports of My Death Were Greatly Exaggerated: Tillman Responds to the Legal Historians Amicus Brief in CREW v. Trump (Sept. 14, 2017), http://ssrn.com/abstract=3037107

The Reports of My Death Were Greatly Exaggerated: Tillman Responds to the Legal Historians Amicus Brief in CREW v. Trump, New Reform Club (Sept. 19, 2017), http://tinyurl.com/ycqlttk6 

Twitter: https://twitter.com/SethBTillman/status/910271775631712256 

Why the "Godless Constitution" Thesis Tells Only Half the Story

It's true that God appears nowhere in the U.S. Constitution.  Religion was left to the states.

— PewResearch FactTank (@FactTank) August 17, 2017

The U.S., the U.K., and Suez

E-mail September 3, 2017, from Tillman to Friend in Northern Ireland, U.K.

Friend,

My wife and I are having a debate. I am asking you to settle it. Do you think there are still Tories and other loyalists in the U.K. who remain bitter against the U.S. in regard to Suez?

Don't hold back.

Seth

[end]

E-mail September 3, 2017, from Friend to Tillman in the Republic of Ireland. 

[That] was in my Father's generation but it has largely dissipated. I would rarely hear it mentioned now and that includes my time in [a leadership role in a U.K. political party] with mainland Unionists and loyalists.  

I often hear discontent at how the U.S. calls the shots militarily and manage our foreign policy at present. We often appear to tag along and do as dictated to by Uncle Sam and there may well be a residual hangover from Suez in that, but Suez is rarely specifically mentioned.

[end]

Seth Barrett Tillman, The U.S., the U.K., and Suez, New Reform Club (Sept. 4, 2017), https://reformclub.blogspot.com/2017/09/the-us-uk-and-suez.html

Press Release from a Member of the Irish National Legislature (i.e., a TD in the Oireachtas)

Press Release

“Despite a new Court of Appeal the judicial backlog is not being reduced,” Mattie McGrath

31-08-2017

Independent TD Mattie McGrath has called on the Minister for Justice, Charlie Flanagan, to address ongoing concerns around the inability of the Court of Appeal to address its persistently high backlog of civil and criminal cases. Deputy McGrath was speaking after an analysis of the Court Service’s Annual Report for 2016 by Seth Barrett Tillman, Lecturer in Law at Maynooth University Department of Law, found that without significant reform the Court of Appeal will be incapable of reducing its judicial backlog:

“This analysis by Seth Barrett Tillman is a forensic deconstruction of the spin that is being pedalled regarding the impact the ‘new’ Court of Appeal is allegedly having on addressing the current backlog of cases.

At the time the idea of the new Court was being sold to the Irish people, it was touted as a kind of panacea for the massive delays that were afflicting our judicial system.

Some of us tried to highlight the fact that all this would do, in the absence of more fundamental reform, was to create the illusion of progress.

That position has now been vindicated.

Seth Barrett Tillman has shown that in the course of the Court of Appeal’s second complete calendar year, with millions spent, the number of pending cases started at 1,814, and by the end of the year the number of pending cases increased to 1,821. In other words, there was no net reduction in the number of cases in  the  backlog.

In point of fact he has also highlighted that there was a 19% decrease in the number of cases disposed of between 2015 and 2016.

All of these issues raise profound challenges for the operation of this Court and public value for money.

They must be addressed and scrutinised without the kind of delays that may arising from an undue sense of deference toward judges.

If they are not getting through the backlog then questions need to be asked about why that is happening year after year even with additional Court facilities at their disposal.

The reasonable conclusion is that more fundamental reform is needed instead of creating another Court with the exact same procedural blocks as has happened in this case,” concluded Deputy McGrath.

END

Notes for Editors:

Seth Barrett Tillman, ‘The Court of Appeal Backlog’ (2017) 35(15) Irish Law Times 206–08 (2017) <http://ssrn.com/abstract=2996405>. This 2017 article continues and extends the arguments which I developed in my prior publications: see, e.g., Seth Barrett Tillman, ‘Has the Irish Court of Appeal Solved the Judicial Backlog? Can it?’ (2016) 34(14) Irish Law Times 210–12 <http://ssrn.com/abstract=2816458>; see also, e.g., Seth Barrett Tillman, Opinion Editorial, ‘Court of Appeal just a new version of Supreme Court—only more costly’ The Irish Times (July 28, 2014, 1:30 AM), at 7 <http://ssrn.com/abstract=2465554>; Seth Barrett Tillman, Opinion Editorial, ‘Time to Open Courts and Let Justice Be Seen’ The Irish Independent, August 22, 2012, 17:00 pm, at A14 <https://ssrn.com/abstract=2129771>. 

Le gach dea ghuí,

Le gach dea ghuí,

Mattie

Mattie McGrath TD

Tipperary Constituency 

------------------------------------------------

Seth Barrett Tillman adding: The language in bold is from the TD, and it was not in my Irish Law Times article. That said, I entirely agree with his sentiment. 

Seth Barrett Tillman, Press Release from a Member of the Irish National Legislature, New Reform Club (Sept. 1, 2017, 4:23 AM), http://tinyurl.com/ycfapaof

McGrath's website: http://mattiemcgrath.ie/despite-a-new-court-of-appeal-the-judicial-backlog-is-not-being-reduced-mattie-mcgrath/. 

The Irish Court of Appeals -- Inefficient & Expensive

I have a new article (just 3 pages) on the efficiency of the Court of Appeal (of Ireland). My article is available on the Social Science Research Network (“SSRN”). Seth Barrett Tillman, ‘The Court of Appeal Backlog’ (2017) 35(15) Irish Law Times 206–08 (2017) <http://ssrn.com/abstract=2996405>. This 2017 article continues and extends the arguments which I developed in my prior publications: see, e.g., Seth Barrett Tillman, ‘Has the Irish Court of Appeal Solved the Judicial Backlog? Can it?’ (2016) 34(14) Irish Law Times 210–12 <http://ssrn.com/abstract=2816458>; see also, e.g., Seth Barrett Tillman, Opinion Editorial, ‘Court of Appeal just a new version of Supreme Court—only more costly’ The Irish Times (July 28, 2014, 1:30 AM), at 7 <http://ssrn.com/abstract=2465554>; Seth Barrett Tillman, Opinion Editorial, ‘Time to Open Courts and Let Justice Be Seen’ The Irish Independent, August 22, 2012, 17:00 pm, at A14 <https://ssrn.com/abstract=2129771>. 

From the abstract:

On 4 October 2013, Ireland held a referendum to create an intermediate court of appeal. The referendum passed, and the Court of Appeal went into operation on 28 October 2014. On 25 July 2017, the Courts Service published its Annual Report 2016. That report provides statistics in regard to the Court of Appeal’s second complete calendar year of operation. We can now ask the question: Has the Court of Appeal successfully dealt with the judicial backlog of appellate cases which it was created to address? We can now also make a tentative answer. The expensive experiment has not succeeded—or, at least, it has not succeeded so far.

Seth Barrett Tillman, The Irish Court of Appeals -- Inefficient & Expensive, New Reform Club (Aug. 30, 2017, 6:46 AM), http://tinyurl.com/ycytq3dr

When Pseudo-Scholars Attack

Fresh from beclowning himself at history, Grove City College psych teacher Warren Throckmorton tries his hand at embarrassing himself on theology.

Throckmorton's leftism has led him to devote a large part of his life to attacking the Religious Right. In this case, Throckmorton presumes to interpret the Bible and lecture conservative Rev. Robert Jeffress on the meaning of Romans 13




What Throckmorton loses in the haze of his partisanship is that Biblically, Jehovah used unworthy rulers such as King Saul as the instrument of his justice against wicked peoples like the Amalakites and Canaanites. Indeed, Babylonian King Nebuchadnezzar was used to punish the wicked Israelites themselves. In this theology, the goodness of the ruler or righteousness of his intentions is irrelevant. He is merely the "sword of God's wrath" against the evildoers. [Indeed, in this Romans 13 passage, Paul was referring to Emperor Nero.]

I don't purport to speak for God or even as a theologian except to note that according to his own religion, Jeffress's interpretation is as valid as anyone else's, especially duffers like Throckmorton operating far above their pay grade.  And we can certainly hope that God sees fit to use the world's rulers to end the wicked tyranny of the Kim family, who have murdered millions and make their people suffer hell on earth. This is what matters, and I agree with Jeffress that they do indeed have the divine authority to do so.

The Emoluments Clauses Lawsuits’s Weak Link: The Official Capacity Issue

Cross-post from Seth Barrett Tillman, The Emoluments Clauses Lawsuits’s Weak Link: The Official Capacity Issue, Notice & Comment: A Blog from the Yale Journal on Regulation (Aug. 15, 2017), http://tinyurl.com/y9g2v6xf 

The Emoluments Clauses Lawsuits’s Weak Link: The Official Capacity Issue

Seth Barrett Tillman**

The conclusion of briefing in Citizens for Responsibility and Ethics in Washington (“CREW”) v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-00458 (Southern District of New York, filed January 23, 2017), the first filed of three Foreign Emoluments Clause cases, is now almost in sight, and briefing is about to begin in the two remaining cases: District of Columbia & Maryland v. Trump (District of Maryland, filed June 12, 2017) and Senator Blumenthal v. Trump (District for the District of Columbia, filed June 14, 2017).

All three lawsuits have provoked sharp debate—debate about constitutional purpose, divided loyalties, and national security; debate in relation to threshold legal questions such as standing (qua harm), standing (qua redressability), political question doctrine, and justiciability; and also debate in regard to more merits related issues, including whether business transactions and regulatory benefits are “emoluments,” and whether the presidency falls under the scope of the Foreign Emoluments Clause’s office of profit or trust under the United States language. U.S. Const. art. I, § 9, cl. 8.

Until now, commentators, including those in the media and academic experts on federal courts, have refrained from discussing one obvious legal defect—a defect common to all three lawsuits. All three lawsuits have been brought against Donald J. Trump “in his official capacity as President of the United States of America.” It is likely that all three cases will founder on this issue.

In Lewis v. Clarke, No. 15–1500, 137 S. Ct. 1285, 581 U.S. ____ (Apr. 25, 2017), Justice Sotomayor explained:

In an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself. This is why, when officials sued in their official capacities leave office, their successors automatically assume their role in the litigation. The real party in interest is the government entity, not the named official.

Id. at 1291 (citations omitted) (emphasis added). In the event of President Trump’s removal, death, resignation, or inability, Trump would be succeeded by Vice President Mike Pence. U.S. Const. art. II, § 1, cl. 6. In those circumstances, the three Foreign Emoluments Clause lawsuits could not be maintained against Pence. None of these cases involve government or public policy; rather, they all involve Trump’s private commercial ventures and investments. Thus per Lewis v. Clarke, not one of these cases is properly an official capacity lawsuit, and each must be dismissed unless plaintiffs’ complaints were significantly amended.

It is hardly obvious the District Court will permit the CREW v. Trump plaintiffs to replead or amend their complaint. After all, in CREW v. Trump, plaintiffs have already filed three complaints. Plaintiffs requested a 4 week extension and were granted 3 additional weeks. Most importantly, the Department of Justice has already filed its 12(b)(6) motion to dismiss along with its gargantuan 60 page brief in support of its motion. It is probably too late, far too late for the CREW v. Trump plaintiffs to amend their complaint and begin briefing all over again.

As for the remaining two lawsuits, those plaintiffs can file amended complaints and bring their constitutional claims against Trump in an “individual” (as opposed to an “official”) capacity. That would make more sense as a procedural matter, but such an individual capacity claim seeking injunctive relief would pose other, perhaps even more difficult challenges for these plaintiffs to overcome. To bring an individual capacity action against the President, plaintiffs would have to argue that their lawsuit is supported by an implied constitutional cause of action. There is simply no case law suggesting any such implied cause of action exists, particularly where the Foreign Gifts and Decorations Act (1966) appears to occupy the field.

To put it another way, if an implied constitutional cause of action under the Foreign Emoluments Clause (U.S. Const. art. I, § 9, cl. 8) or the Presidential Emoluments Clause (U.S. Const. art. II, § 1, cl. 7) had even an outside chance of being “discovered” or upheld by the federal courts, surely the CREW v. Trump plaintiffs would have pled their case as an official capacity case and as an individual capacity case in the alternative. One cannot blithely assume that CREW v. Trump plaintiffs simply overlooked the possibility of bringing their causes of action as an individual capacity lawsuit. After all, their complaint is signed by no fewer than 16 litigators, including 3 full time law school academics—one of whom has written the leading text on federal courts. See Dean Erwin Chemerinsky, Federal Jurisdiction (7th ed. 2016). One can only surmise that the CREW v. Trump plaintiffs did not plead in the alternative because an individual capacity suit would not be the slam dunk, strong lawsuit that they have continually promised their supporters. Instead, it would be a wholly novel claim which is not likely to survive either academic or judicial scrutiny. 

[END]

Seth Barrett Tillman, The Emoluments Clauses Lawsuits’s Weak Link: The Official Capacity Issue, New Reform Club (Aug. 15, 2017, 2:03 PM), http://tinyurl.com/yabyuz27 

Addendum: Adam Charnes, Esq made the same point on Twitter before I published on Notice & Comment. See https://twitter.com/AdamCharnes/status/874300556935933952.
Professor Hessick also made the same point on Twitter before I published on Notice & Comment. See https://twitter.com/AndyHessick/status/874329428947587072. 

---

** Seth Barrett Tillman, an American national, is a lecturer in the Maynooth University Department of Law, Ireland. Professor Josh Blackman and Robert W. Ray, Esq. filed a scholar’s brief on Tillman’s behalf in CREW v. Trump. See Motion and Brief for Scholar Seth Barrett Tillman as Amicus Curiae in Support of the Defendant, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, President of the United States of America, Civ. A. No. 1:17-cv-00458 (S.D.N.Y. June 16, 2017) (Daniels, J.), Doc. No. 37, 2017 WL 2692500. Tillman’s brief supports the President. 

Kevin Myers

Undoubtedly, Myers is cranky and curmudgeonly, and infuriating and idiosyncratic. He is also, at times, brutally honest (in the sense of describing the world as he sees it), offensive, rude, and maybe, just maybe—occasionally mean. But he is not an anti-Semite. And when you and your organization support that charge, even loosely, when you know it is not warranted, you will find that you have watered the charge of anti-Semitism down into a meaningless talking point when you try to assert it against genuine dangerous and violent anti-Semites (who, I am sorry to say, actually exist in your country [the U.K.]). It might make you uncomfortable to stand with Myers because he is not a modern politically correct saint, but that is (in my view) your job, else the allegation of anti-Semitism becomes a sham. 

Jonathan Hoffman, Is Kevin Myers really an anti-Semite?, Jewish News (Aug. 1, 2017, 1:10 PM), http://blogs.timesofisrael.com/kevin-myers-is-no-anti-semite/

Petition, Kevin Myers Is Innocent OK - Give Him His Job Back!, Change.Org, https://www.change.org/p/martin-ivens-and-frank-fitzgibbon-give-kevin-myers-his-job-back

Mark Humphreys, Kevin Myers, Mark Humphrey's Blog (Aug. 2017), http://markhumphrys.com/kevin.myers.html

Douglas Murray, Kevin Myers’ eager critics should feel ashamed of themselves, Spectator (UK) (Aug. 6, 2017, 7:42 AM), https://blogs.spectator.co.uk/2017/08/kevin-myers-eager-critics-should-feel-ashamed-of-themselves/

Ruth Dudley Edwards, Lynch mob may have killed off the career of Kevin Myers, Belfast Telegraph, Aug 7, 2017, www.belfasttelegraph.co.uk/opinion/columnists/ruth-dudley-edwards/ruth-dudley-edwards-lynch-mob-may-have-killed-off-the-career-of-kevin-myers-36005423.html 

Today with Sean O’Rourke, RTÉ Radio 1 (Aug. 3, 2017, 10:00 AM) (interviewing Tillman), http://tinyurl.com/yatv7fkf (at 1:08:50ff)

Seth Barrett Tillman, Kevin Myers, New Reform Club (Aug. 8, 2017, 1:44 PM), http://tinyurl.com/yac4cb4a 

Seth Barrett Tillman, Anti-Semitism, New Reform Club (Aug. 3, 2017, 3:49 AM), http://tinyurl.com/y9vs7vrq

Anti-Semitism

To: seth tillman  

Cc: info@antisemitism.uk

Sent: Thursday, August 3, 2017 7:23 AM

Subject: Re: Kevin Myers

Hi Seth

Thank you for contacting Campaign Against Antisemitism.

We have been inundated with calls and emails regarding Kevin Myers. 

Unfortunately we will be unable to call you back at this time. Could we help via email?

Best regards,

The Campaign Against Antisemitism Team

-----------------------------

seth tillman
• Today at 7:36 AM

To

• Campaign Against Antisemitism

Message body

There is real anti-Semitism in the UK, including real physical dangers and actual exclusion of Jews from public places, meetings, and clubs, including political clubs. Such things are entirely (or almost entirely) unknown in the Republic of Ireland. You have enough to do in your own country, without looking to expand your remit here.

Moreover, Kevin Myers is entirely innocent of the wholly fabricated charge of anti-Semitism. He is, at most, guilty of being idiosyncratic, cranky, and curmudgeonly. He has been a consistent and long term friend of the Irish Jewish community, which--quite courageously--rallied to his support in spite of a social media mob. 

Dreyfus was a victim of false charges. So is Myers. Those who remain silent on this will not be remembered well.

Seth

Seth Barrett Tillman, Anti-Semitism, New Reform Club (Aug. 3, 2017, 3:49 AM), http://tinyurl.com/y9vs7vrq

Today with Sean O’Rourke, RTÉ Radio 1 (Aug. 3, 2017, 10:00 AM) (interviewing Tillman), http://tinyurl.com/yatv7fkf (at 1:08:50ff)

"I am not an anarchist"

My great-grandfather's sworn Declaration of Intention, 1919. I am reasonably certain our immigration papers do not include this language these days.

Why isn't Congress getting more done?

Over at Instapundit Ed Driscoll asks why Congress isn't getting more done. The GOP holds the presidency, the House and the Senate (although the Senate only by a very thin 2-vote margin). So, why isn't there more legislative action? I propose a four-part explanation for why Congress wasn't ramped up and reading to go with a set of reform bills once President Trump was sworn into office:

Why weren't the bills lined up and ready to go? Three reasons: expectations, time, focus and desire. Expectations: because the GOP establishment/insiders/leadership thought Trump would lose and didn't want to waste the time to put together a positive legislative agenda when their strategy was going to be more meaningless repeal votes and jamming legislative action on what they thought would be President HRC's agenda. 

Time: it takes months and months to draft a significant piece of legislation, and years to put together a thoughtful sequence of legislative pieces that work together to advance a coherent agenda. Trump's economic agenda, whatever its inadequacies, is coherent: defend American markets from overburdensome taxation, regulation and trade policies. Now, he might be all wrong about how to do that -- he might be completely wrong about the nature of the problems facing the American economy. But his agenda, given its assumptions, is coherent. Legislatively crafting that agenda -- coordinating all the moving parts -- to get it done in the first 100 days or even the first 1000 days would have required the legislative drafting to begin at least a year or two prior to the election. Nobody was thinking that far ahead at that point, not Trump, and certainly not the GOP establishment/insiders/leadership. 

Focus: Trump's team has been distracted since he won the election, both by the breadth of what it is working on and by the media assault that it is under 24/7. Reagan understood, when he came into office, that even if he was a 2 term president he would only really get 4 or 5 things done. So, he focused like a laser beam on those 4 or 5 things: tax cuts/reform, regulatory reform, putting the Soviet Union on the read to extinction, SDI (arguably a sub-set of his Soviet policy), and getting better judges appointed to the judiciary. And even Reagan's success on those 4 or 5 things was mixed (cough, Justice O'Conner, cough, Justice Kennedy, cough). When Reagan got distracted, bad things happened (Lebanon, Iran-Contra, the illegal immigrant amnesty). The point being, Reagan wanted to fix 1000 things and had to settle for ... addressing 4 or 5 things. Trump wants to fix 1000 things and is trying to fix 1000 things. He needs to prioritize. When he does (Gorsuch, regulatory reform) he gets results. When he doesn't (everything else), he stalls.

Desire: the GOP establishment very much wants Trump to fail. Mosts of those folks are part of the open borders-free trade globalization elite that very much would like to see the United States become more fully integrated into trans-national trading blocs -- at the cost of the nation's sovereignty and the prosperity of most of our people. Trump's campaign and administration thus far have been a solid repudiation of the globalization ethos. Trump is an American nationalist, as his inaugural address made clear. The GOP congressional leadership and the people who run the party are ... not. 

Bob Bauer’s Free Speech Problem and Ours

We have a free speech problem in America. I have talked about it before. It starts with the judiciary. See Seth Barrett Tillman, This Is What Is Wrong with the American Judiciary, The New Reform Club (Mar. 16, 2017, 4:23 AM), http://tinyurl.com/z4q9f8v. But the wider legal community has embraced the same legal philosophy. They want you to shut up, and if you don’t shut up, there is always punishment. Here is an example.

[First,] [t]he President resents Jeff Sessions’s decision to recuse himself and says that he would not have nominated an attorney general who intended to follow the recusal rules in this case. [Second,] [the President] also doubts that he can trust Deputy Attorney General Rod Rosenstein, because he was US Attorney in a city, Baltimore, that is Democratic in its voting pattern. In neither case does the [P]resident seem to appreciate, or be moved by, the conception of professionalism, including independence and impartiality of judgment. And, of course, Trump’s continued emphasis on the supreme importance to him of loyal subordinates in the ranks of law enforcement will not serve him well as prosecutors form a picture of him in evaluating evidence of obstruction.[1]

Let’s take these claims one at a time. “[T]he President resents Jeff Sessions’s decision to recuse himself and says that he would not have nominated an attorney general who intended to follow the recusal rules in this case.” First, Bob Bauer does not quote the President saying any such thing. What Bauer means is whatever the President said, this is what his words really mean. The second thing to note is the event at issue is one which happened in the past—it is not something which is happening now or is yet to happen; rather, it relates to Trump’s opinion as to a past event and how, hypothetically, he would have done it differently. So what is the problem? Trump, according to Bauer, resents Sessions’s decsion. Is that view illegal? Is it a threat or a promise to do something illegal in the future? Bauer’s view amounts to this: the President holds the wrong opinion as to a past event. 

Now look at Bauer’s second claim: “[The President] also doubts that he can trust Deputy Attorney General Rod Rosenstein because he was US Attorny in a city…that is Democratic in its voting pattern.” Now maybe the President is wrong about this, or maybe he is right. Let’s say the better view is (as Bauer suggests) that the President’s view is the wrong view about DAG Rosenstein. The President did not say Rosenstein is a crook or that if Rosenstein does the same thing again, he will be jailed. The President merely expressed (according to Bauer) doubts. Is that view illegal? Is it a threat or a promise to do something illegal in the future? Again, Bauer’s view amounts to this: the President holds the wrong opinion as to past events.

In neither situation does Bauer suggest that the President is lying. Bauer does not suggest that the views expressed by the President are anything but what the President actually believes. In other words, part of Bauer’s criticism is that the President is telling the truth (at least, as the President sees it). In neither situation does Bauer suggest that it is a good thing for this or any president to express his views forthrightly to the nation’s citizens about how he sees the world. Indeed, another element of Bauer’s overall critique is that the President is not listening to his legal advisers who have told the President (or who should have told the President) to shut up. Instead, the President refuses to listen to his advisers, and he keeps communicating with the public, i.e., telling the public precisely what he thinks about the issues of the day. Has Bauer considered the possibility that a good segment of the voting public likes the President’s honesty (even if they also disagree with his substantive views)? Perhaps this is why Trump won, and why HRC lost?

OK. So much for Trump. Bauer thinks Trump has the wrong opinions about things that happened in the past and in regard to hypothetical events. Trump has the wrong resentments and the wrong doubts. So what should right-thinking people believe? Now Bauer tells us: we ought “to appreciate, or be moved by, the conception of [Department of Justice] professionalism . . . independence and impartiality.” Bauer cannot be telling us that Trump ought to appreciate these values as things in themselves. Rather, it only makes sense for Bauer to criticize Trump on these grounds if in fact the DOJ is professional, independent, and impartial. I suppose it might be, and if Bauer ended here we could agree or not with Bauer’s view here based on what we know about the DOJ’s past and current behavior. But Bauer does not end here. Rather, Bauer concludes with: “Trump’s continued emphasis on the supreme importance to him of loyal subordinates in the ranks of law enforcement will not serve him well as prosecutors form a picture of him in evaluating evidence of obstruction.” Now isn’t this the most extraordinary admission? Isn’t Bauer telling us that if you have the wrong opinions, if you have the wrong resentments, and the wrong doubts, and if you have the wrong (I kid you not) emphasis, then the likelihood of the DOJ’s prosecuting you will meaningfully increase? And if that is the measure of DOJ professionalism, independence, and impartiality, if those virtues are not to be found when the DOJ exercises its prosecutorial discretion, then isn’t Trump 100% correct in demanding loyalty?

Bauer describes a prosecutorial regime where free speech is not protected or even valued. His criticism of Trump is that Trump will not kowtow to the bullies and to his legal advisers (i.e., people like Bauer) who urge him to submit to the bullying. Does it even dawn on Bauer that maybe, just maybe, Trump ought to be praised for trying to reclaim America’s free speech tradition? Is it possible that thousands of voters, sensing the decline of our free speech tradition, voted for Trump for precisely this reason? And perhaps that is why Trump won several close states, if not the election, and why HRC lost?

This is a dangerous and divisive game that Bauer and the President’s opponents are playing. Bauer finds it perfectly normal, if not archetypically professional, for the prosecutorial arm of the government to mobilize itself against a citizen (here, the President!) for nothing more than expressing opinions about past public political events and for having the wrong resentments, the wrong doubts, and the wrong emphasis. Again: the wrong emphasis! Bauer’s sad comment on our ‘justice’ system and professionals fills me with “foreboding.” “That tragic and intractable [totalitarian] phenomenon,” which we see with horror in former Soviet Bloc countries, Third World dictatorships and, more recently, among the most politically correct members of the European project, “is coming upon us” in the United States “by our own volition and our own neglect.” It will be of European dimensions before we realize the full scope of the transformation in American free speech mores and law. “Indeed, [the transformation] has all but come.”[2]

Seth Barrett Tillman, Bob Bauer’s Free Speech Problem and Ours, New Reform Club (July 23, 2017, 10:36 AM), http://tinyurl.com/y7ahouep.

---

[1] Bob Bauer, Considering Trump’s Legal Position (and Problems) After the New York Times Interview, Lawfare (July 20, 2017, 11:30 AM), http://tinyurl.com/yax56hg9 (emphasis added).

[2] Address to the Annual General Meeting of the West Midlands Area Conservative Political Centre (Birmingham, Midland Hotel 1968). My blog post’s last paragraph has drawn freely from the language and imagery used in the Birmingham speech, although that speech was on an entirely different subject matter.