The Oral Argument in People of the State of New York v. Trump

 

 

New York v. Trump was the case where Trump was convicted by a jury of violating NY’s conspiracy and public records law. Judge Merchan was the trial court judge. Trump took an appeal from NY’s state trial court to NY’s intermediate court of appeals—also a state court. (Albeit, Trump sought and continues to seek to remove the case into the federal court system.) The briefs are here: Seth Barrett Tillman, ‘People of the State of New York v. Trump: Briefs and Other Filings (N.Y. App. Div. 1st Dep’t),’ New Reform Club (Nov. 12, 2025, 4:08 AM) (updated), <https://reformclub.blogspot.com/2025/11/people-of-state-of-new-york-v-trump.html>. I filed an amicus brief. Oral argument was on November 5, 2026. Here is a link: <https://www.youtube.com/live/pP-Zy1jdgmE>. My impression was that this panel was well prepared and informed.

 

I am not going to predict which party will prevail. But I will say that Bragg’s attorney (Steven Wu) said: “What the prosecution was considering was the fact of a FECA [Federal Election Campaign Act] violation among many other potential violations and the jury was then drawing from the fact of that violation an inference ….” (at 45:30ff) (emphasis added). Where, as here, a statutory offense has an element which is a predicate of that offense, and that predicate element is itself a legal violation or predicate offense, then there can be no conviction absent jury unanimity with regard to every element of that predicate offense. The prosecutor cannot escape Amendment V due process requirements and Amendment VI jury-unanimity requirements merely be recasting the predicate offense as a “fact.” It is not a “fact”—it is a jury determination with regard to a legal violation or offense. If District Attorney Bragg and Steven Wu lose, I suspect, they will lose on this point.

Seth

Seth Barrett Tillman, ‘The Oral Argument in People of the State of New York v. Trump,’ New Reform Club (Nov. 9, 2026, 7:21 AM), <https://reformclub.blogspot.com/2026/11/the-oral-argument-in-people-of-state-of.html>; 

Minnesota and Tennessee: Two Different States with Two Different Legal Systems

 

Senator Blackburn was re-elected to the U.S. Senate in 2024. She has a 6-year Senate term. On November 3, 2026, she was elected Governor of Tennessee. Can she hold both positions concurrently? No. Why? Tennessee Constitution, Article III, Section 13 states: 

No member of Congress, or person holding any office under the United States, or this state, shall execute the office of governor.

It is different in Minnesota. See Josh Blackman & Seth Barrett Tillman, ‘Senator-Governor Klobuchar and the Problem of the Received Wisdom,’ Reason—Volokh Conspiracy (Nov. 6, 2026, 8:55 AM), <https://reason.com/volokh/2026/11/06/senator-governor-klobuchar-and-the-problem-of-the-received-wisdom/>. 

Seth Barrett Tillman, ‘Minnesota and Tennessee: Two Different States with Two Different Legal Systems,’ New Reform Club (Nov. 7, 2026, 3:12 PM), <https://reformclub.blogspot.com/2026/11/minnesota-and-tennessee-two-different.html>; 

BONUS POINT: Given the language of Article III, Section 13, above, one could fairly conclude that the position of governor is not an “office under ... this state” as that language is used in the Tennessee Constitution. This drafting convention is in accord with similar language in the U.S. Constitution.

Financial Times: Tillman’s Letter to the Editor

 

Patrick Jenkins, ‘Corruption crusader Donald Sherman: “If you give a bully your lunch money, they’re going to ask for more”,’ Financial Times (Nov. 2, 2026).

Patrick Jenkins wrote: “Trump’s commercially minded actions are still governed by the ... [F]oreign [E]moluments [C]lause[] in the [U.S.] [C]onstitution.”

I have been writing in academic articles and in amicus briefs since 2008 (well before Trump) that the Foreign Emoluments Clause’s “office ... under the United States”-language applies exclusively to federal appointed (or statutory) positions, and not to any elected federal positions—members of Congress, Vice President, and President. 

My position is that the U.S. Constitution’s “office ... under the United States”-language was substantially borrowed by the Framers of the U.S. Constitution from then-prevailing British statutory drafting conventions. Such 18th century British (and formerly English) statutes frequently used “offices ... under the Crown”-language, and that latter language does not apply to elected or apex positions, but only to appointed or subordinate positions. There is a wealth of legal authority explaining the scope of “office under the Crown.”

The Supreme Court of the U.S. and the other federal courts have not conclusively resolved this issue: What is the scope of “Office ... under the United States” as used in the Foreign Emoluments Clause and in other constitutional provisions? During the first round of Foreign Emoluments Clause-related litigation against Trump—between 2017 and 2021—two federal trial (or district) courts took the position that such language did encompass the presidency. Both those decisions were subsequently vacated or reversed. In 2025, a state trial court in Colorado held that “office ... under the United States” as used in Section 3 of the Fourteenth Amendment did not extend to the presidency. The trial court’s decision was reversed by the Colorado Supreme Court, and then the U.S. Supreme Court reversed the Colorado Supreme Court. Thus, the state trial court’s decision on this point remains the only good law on the subject. That Colorado decision is persuasive, but not binding, precedent.

Donald Sherman and Citizens for Responsibility and Ethics in Washington (“CREW”) may and, in fact, have argued to the contrary. But the courts of the United States have yet to speak with clarity on this issue.

Seth 

Seth Barrett Tillman, ‘Financial Times: Tillman’s Letter to the Editor,’ New Reform Club (Nov. 2, 2026, 5:37 AM), <https://reformclub.blogspot.com/2026/11/financial-times-tillmans-letter-to.html>;