A Response to Professor Jack Rakove

 

Editors(@)WashingtonMonthly.com

 

Re: Jack Rakove, ‘It’s Not Just a Constitutional Crisis in the Trump Era. It’s Constitutional Failure,’ Washington Monthly (June 27, 2025), <https://tinyurl.com/33er4nf7>.

Professor Rakove wrote:

The Court thus casually squandered an opportunity to clarify the meaning of a provision that badly needs enforcement. All previous presidents had scrupulously adhered to the Emoluments Clauses, which embody the fundamental principle that presidents should neither seek nor hold office for private gain.

Two other cases [involving the Foreign and Domestic Emoluments Clauses], however, progressed in the lower courts, but once they were appealed, the Supreme Court slow-walked them until Trump left office, leaving the issue moot.

These claims are not correct, and Rakove puts not a shred of evidence forward supporting his positions.

The facts are these. The parties on both sides of the two cases before the U.S. Supreme Court represented to the Court that the cases were moot. In these circumstances, where the parties no longer had a live, continuing dispute, the Court had no real choice but to dismiss the case. The effect of that, under settled doctrine, was to vacate the lower court decisions which had adjudicated the meanings of the Emoluments Clauses. As a result, there are no binding federal circuit court precedents or persuasive district court precedents expounding on the scope of the Emoluments Clauses’ less-than-entirely-clear language. In fact, the situation was considerably more complex than plaintiffs’ Supreme Court filings let on. Plaintiffs’ official-capacity claim against Trump (qua the President) was moot once Biden became President. But plaintiffs’ individual-capacity claim against Trump (qua the individual) remained actionable. Plaintiffs chose not to pursue their individual-capacity claim. Why they did this only they know.

Moreover, had these cases reached the U.S. Supreme Court in a timely fashion, then the Court may have had time to reach a decision on the merits. But the trial court proceedings moved slowly. There were three such lawsuits. The first case, CREW v. Trump (filed in the United States District Court for the Southern District of New York), was filed timely: it was brought during January 2017, at the beginning of Trump’s first term. But the Blumenthal v. Trump complaint (filed in the United States District Court for the District of Columbia) was lodged considerably later: during June 2017, not January 2017. Likewise, the DC & MD v. Trump complaint (filed in the United States District Court for the District of Maryland) was also lodged during June 2017. There were other causes of delay. Plaintiffs filed multiple amended complaints in each case. And plaintiffs repeatedly sought extensions in regard to the timing of their briefs.

Defendant Trump-the-President (i.e., the official-capacity defendant) and Defendant Trump-the-Individual (i.e., the individual-capacity defendant) only sought one extension in one of the three cases on one occasion—a single extension which was only prompted by plaintiffs’ having first sought an amended schedule seeking an extension for plaintiffs. Had the plaintiffs adhered to the original schedule, the defendants would not have sought any extension.

Similarly, plaintiffs, when seeking to appeal, were also dilatory. Rather than seeking to appeal and seeking certiorari soon after an unfavourable final judgment, plaintiffs took the full (or nearly the full) time period in which to file: their appeals to the federal circuit courts of appeals and their certiorari petitions for discretionary U.S. Supreme Court review.

As for the lower courts, Judge Sullivan (District of Columbia) and Judge Messitte (District of Maryland) were slow in calling for and holding an oral argument after briefing had closed, and they were slow to issue a final order after having held oral argument. Indeed, Messitte bifurcated his response to the official-capacity defendant’s motion to dismiss. Judge Messitte held two oral arguments and issued two separate opinions based on the official-capacity defendant’s single motion to dismiss. And, Messitte never resolved the individual-capacity defendant’s motion to dismiss. Notwithstanding his unwillingness to address Trump’s motion, Messitte nevertheless ordered Trump to submit to discovery. Odd.

The delay, such as there was, was not caused by the Supreme Court and it was not caused by Trump and his lawyers. The simple fact is that: Plaintiffs ran out the clock. It is likely that they had strategic reasons for doing so. Perhaps they thought that the U.S. Supreme Court would be an unfriendly forum, and they sought to end the lawsuits before losing on the merits? It was plaintiffs’ tactical decisions which left the U.S. Supreme Court with no opportunity and no time to act on these appeals. And again: the plaintiffs chose not to actively pursue the individual-capacity claim against Trump. Why? If there is blame here, look first to the plaintiffs and their (lawyers’) strategic choices. Then look to the lower courts. There was one exception: Judge Daniels (Southern District of New York) worked impartially, promptly, and professionally in every sense. A true role model.

Professor Rakove’s blaming on the Supreme Court today’s lack of controlling and persuasive precedent regarding the meaning of the Constitution’s Foreign Emoluments and Domestic Emoluments Clauses is, at best, mistaken, and at worst, Orwellian. And let’s not forget that part (albeit, a small part) of the delay was engineered by Professor Rakove and his co-amici filing a brief and then subsequently filing a retraction because their factual claims were not defensible. See Letter from Counsel for the Legal Historians to Judge George B. Daniels, CREW v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Oct. 3, 2017), ECF No. 96, <https://tinyurl.com/ybd783uf>. 

Finally, Professor Rakove wrote that “All previous presidents had scrupulously adhered to the Emoluments Clauses.” Really? President George Washington received, accepted, and kept several diplomatic and state gifts from the French ambassador to the United States and from a second French government official. Washington never asked for and he never received consent from Congress. Likewise, President Washington purchased land at auction from the federal government in the new federal capital. All this is well known today, as it was well known in the 1790s. There is no record of any of Washington’s contemporaries—in Congress, in the press, or in private correspondence—including among those in the Anti-Administration congressional faction—suggesting any impropriety, much less a constitutional violation. There is no record of any biographers, public intellectuals, or academics then or since suggesting Washington’s conduct violated either Emoluments Clause. No record until Trump. And then the past had to be written. Why Rakove would be willing to participate in such a “history project,” only he knows. The rest of us can only guess. 

Seth

PS: Just to be clear: I participated (along with co-amici) in the three Emoluments Clauses cases.

Seth Barrett Tillman, ‘A Response to Professor Jack Rakove,’ New Reform Club (July 16, 2025, 1:42 AM), <https://reformclub.blogspot.com/2025/07/a-response-to-professor-jack-rakove_16.html>; 

Must Article III Courts Issue Explanations for their Orders?

 

Extract from: Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224(2) Mil. L. Rev. 481, 502 & n.53 (2016) (peer review), <http://ssrn.com/abstract=2646888>, <https://tinyurl.com/2p9efyek>. 

 

[Tillman (2016):] “The issuance of opinions by courts is a convention or tradition of the American judicial system, but such opinions are not mandated by the express text of Article III, by any federal statute, or even by any federal judicial decision.⁵³ In short, in the American judicial system, orders are primary, not opinions.” [Id. at 502 (footnote omitted).]

[Tillman (2016):] “See, e.g., Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. Rev. 123, 126 (2000) (‘The operative legal act performed by a court is the entry of a judgment; an opinion is simply an explanation of reasons for that judgment.’); Charles A. Sullivan, On Vacation, 43 Hous. L. Rev. 1143, 1161 (2006) (‘An opinion cannot be central to dispute resolution because there is no requirement that an appellate court issue an opinion, and frequently such courts decide cases without any opinion.’ (emphasis added)); see also Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 Iowa L. Rev. 1267, 1327 (1996) (‘The President’s ordinary obligation to enforce a judgment extends only to the raw judgment itself: the finding of liability or nonliability and the specification of the remedy. That duty does not impose on the President any requirement in future cases to follow the reasoning that led to the court’s judgment or to extend the principles of that judgment beyond the issues and parties encompassed by it.’); id. at 1328 (‘[T]he issuance of opinions is not an essential aspect of the judicial power.’); cf. Daniel J. Meltzer, Executive Defense of Congressional Acts, 61 Duke L.J. 1183, 1187–88 (2012) (‘Suppose President Lincoln and President Nixon both believed the courts got the Constitution wrong. Must they nonetheless honor the courts’ decisions? If so, is any obligation limited to complying with specific orders, as Lincoln famously suggested, or must the executive more broadly follow the doctrines laid down by the courts?’ (citing Lincoln’s First Inaugural Address) (internal citation omitted)). But compare Lawson & Moore, supra at 1328 n.284 (suggesting that legal ‘requirements that judges give reasons for their conclusions . . . are therefore constitutionally questionable’), with Sullivan, supra at 1161 n.90 (explaining that under Federal Rule of Civil Procedure 52(a), federal district courts must ‘explain their decisions when they sit as the trier of fact,’ such as when a district court hears a case absent a jury). See generally Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 Cardozo L. Rev. 43 passim (1993).” [Id. at 502 n.53.] 

[Tillman (July 15, 2025):] I might add that any duty or aspirational norm regarding a court of record putting forward an opinion or otherwise advancing a reasoned explanation for an order falls heaviest on final judgments, and only to a lesser extent on interim orders prior to a substantive review on the merits. It is not as if every trial court regularly produces (or even could produce) a written explanation in regard to every hearsay or other objection. Frequently, such courts merely rule and do not put forward any reasoning, even orally. And certainly, discovery orders, although sometimes issued as speaking orders, often come absent advancing any rationale for the relief granted and the relief denied. All this is well known to trial court practitioners, even if this issue is left somewhat unclear in academic casebooks reviewing primarily (or, perhaps, only) appellate caselaw.

Seth Barrett Tillman, ‘Must Article III Courts Issue Explanations for their Orders?,’ New Reform Club (July 15, 2025, 3:25 AM), <https://reformclub.blogspot.com/2025/07/must-article-iii-courts-issue.html>; 

A Lawfare Research Project

 

David L. Noll, Lawfare Research Project 25-4, ‘Civil Contempt Against a Defiant Executive,’ Lawfare (1 July 2025), <https://ssrn.com/abstract=5346771>.

 

Professor Noll wrote:

When Union troops entered the city, they arrested John Merryman, a pro-slavery Democrat who was organizing supporters of the Confederacy, and imprisoned him at Fort McHenry. The army allowed Merryman access to a lawyer. He petitioned Chief Justice Roger Taney, who maintained chambers in Baltimore as circuit justice, for a writ of habeas corpus. [page 31 (footnotes omitted)]

Union Army troops arrested Merryman some twelve days after they entered Baltimore. Merryman did not live in Baltimore—his home was in Cockeysville—some 18 miles from Baltimore. What evidence is there that Taney had chambers in Baltimore? Moreover, it is astonishing that Noll would write that Merryman was “organizing supporters of the Confederacy.” Noll puts forward no evidence in support of that bold, inflated claim. And the authority on which Noll relies (that is, a journal article by Professor Vladeck) makes no such claim. As for counter-evidence, see ‘Merryman, John, of Hayfields,’ in 1 The Biographical Cyclopedia of Representative Men of Maryland and District of Columbia 312 (Baltimore, National Biographical Publishing Company 1879) (explaining that shortly before Merryman’s seizure by the U.S. Army, Merryman “was introduced to [U.S.] Major Belger, and offered to render him or the [Union] troops any service required; and if necessary would slaughter his [Merryman's] cattle to supply the[] [Union troops] with food”). I certainly hope that Noll is not relying on the government’s indictment. An indictment is only a mere accusation; it is not evidence of guilt. That is blackletter law. 

 

Seth Barrett Tillman, ‘A Lawfare Research Project,’ New Reform Club (July 13, 2025, 6:12 AM), <https://reformclub.blogspot.com/2025/07/a-lawfare-research-project.html>;

See also: 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 43–65 (2024) (peer review), <http://ssrn.com/abstract=4157572>; 

and, 

Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224(2) Mil. L. Rev. 481–540 (2016) (peer review), <https://tinyurl.com/2p9efyek>, <http://ssrn.com/abstract=2646888>.

The Things You Find When Visiting A Library With An Older Collection of Books on U.S. History

An Elector, ‘To the Free Electors of this Town,’ Boston 1788, in 2 Charles S. Hyneman & Donald S. Lutz, American Political Writing During the Founding Era 1760–1805, at 705–06 (1983) (describing “electioneering” as a “corrupt” practice);

1 Joseph L. Blau & Salo W. Baron, The Jews of the United States 1790–1840, at 28 (1963) (“One article [of the North Carolina Constitution of 1776] granted complete freedom of religion; another required al state officials to be theists and Protestants and to accept the divine authority of both Old and New Testaments. As a Jew, Jacob Henry could not conscientiously conform to the latter provision.”); 

15 The Documentary History of the Ratification of the Constitution, 3 Commentaries on the Constitution / Public and Private / 18 December 1787 to 31 January 1788 (John P. Kaminski & Gaspare J. Saladino eds. 1984):

‘The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents,’ at 15 DHRC 13, 29 (explaining that a quorum of the Senate is 14, and a treaty may be assented to by the Senate by 10 members, that is 2/3 of a quorum); 

Luther Martin, ‘Genuine Information V’(Baltimore’s ‘Maryland Gazette,’ 8 January 1788) 15 DHRC 348, 351–52 (expounding on the history of the draft Ineligibility Clause); id. at 352 (“And as the system is now reported, the president having the power to nominate to all offices . . . .” (italics in the original)); 

Seth Barrett Tillman, ‘The Things You Find When Visiting A Library With An Older Collection of Books on U.S. History,’ New Reform Club (July 10, 2025, 8:55 AM), <https://reformclub.blogspot.com/2025/07/the-things-you-find-when-visiting.html>; 

The Academic Left and Right

What started in 2017 was a real eye opener. It was part and parcel of a series of events, continuing to this day, revelatory of a decline of civility in U.S. academic institutions, law, and other fields. A large part was driven by Trump derangement syndrome. But it’s more than that. It’s really quite shocking when academics who have preached civility in front of large audiences depart, in their own publications, from the standards they have regularly espoused elsewhere. But that is where we are. This behavior is omnipresent among the woke left. But it’s not just there. Among right-of-center legal academics, you will find some who will not give the time of day to other academics who have departed, in even the most minor way, from what the former believe to be acceptable legal orthodoxy. It is miserable, mean-spirited fanaticism borne of misplaced self-pity.

Seth Barrett Tillman, ‘The Academic Left and Right,’ New Reform Club (June 30, 2025, 14:53 PM), <https://reformclub.blogspot.com/2025/06/the-academic-left-and-right.html>; 

The above is an excerpt from: R. Yitzchok Frankfurter, ‘Going Mainstream: How a Little-Known Orthodox Jewish Law Professor in Ireland Became a Prominent Legal Voice in the Trump Era,’ (Issue 720) Ami Magazine, May 28, 2025 / 1 Sivan 5785, at 180–203 (interviewing Tillman), <https://amimagazine.org/2025/05/27/going-mainstream/>, <https://ssrn.com/abstract=5282511>.

Trump-47 and the Vacant Article III Judicial Posts

There are some 60 vacant Article III (federal) judicial posts. Trump-47 has put forward four nominees for vacant federal district court positions (all in Missouri), and he has put forward one nominee for a vacant federal appellate position (in the Sixth Circuit). There are five (other) vacant federal appellate positions without any nominees, and there are 50 vacant federal district court positions without any nominees. Additionally, there is one vacant Article I judicial post in the United States District Court for the Virgin Islands. It too lacks a nominee.

There are eight vacant federal district court positions in TEXAS without any nominees. FLORIDA has five vacant federal district court positions. Both LOUISIANA and NORTH CAROLINA have four vacant federal district court positions. Texas, Florida, Louisiana, and North Carolina—each has two Republican U.S. Senators. All four states voted for Trump in 2024. 

All the extant Trump-47 nominees were submitted on May 12, 2025. There has been no activity in over a month. 

A month.

Seth

Seth Barrett Tillman, ‘Trump-47 and the Vacant Article III Judicial Posts,’ New Reform Club (June 16, 2025, 17:38 PM), <https://reformclub.blogspot.com/2025/06/trump-47-and-vacant-article-iii.html>; 

Vacancies are reported here: current vacancies: <https://www.uscourts.gov/data-news/judicial-vacancies/current-judicial-vacancies>, and future vacancies: <https://www.uscourts.gov/data-news/judicial-vacancies/future-judicial-vacancies>. 

Correcting a Popular Misconception

 

Hi,

I have attached a copy of: Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399 (2012). Pages 410 to 417, touching on the history and practice under the U.S. Constitution’s Foreign Emoluments Clause, may interest you.

For what it is worth, I do not believe the scope of the Foreign Emoluments Clause is obvious. 

I also think [your] blaming everything that happened on the Supreme Court in relation to the prior Emoluments Clauses cases is misplaced. The lower court precedents were wiped out by the regular application of Munsingwear doctrine. The parties on both sides represented to the Supreme Court that the cases were moot. However, the plaintiffs chose not to pursue the individual-capacity claim against Trump, that is, only the official-capacity claim was actually moot.

Had these cases reached the U.S. Supreme Court in a timely fashion, then the Court may have had time to reach a decision on the merits. But the trial court proceedings moved slowly. The first CREW v. Trump complaint (S.D.N.Y.) was timely: it was brought during January 2017. But the first Blumenthal v. Trump complaint (D.D.C.) was lodged much later: during June 2017, not January 2017. Likewise the first DC & MD v. Trump complaint (D. Md.) was also lodged during June 2017. Throughout these three cases, plaintiffs repeatedly sought extensions in regard to the timing of their briefs, and this was in addition to plaintiffs’ filing multiple amended complaints in each case. Defendants (both the official-capacity [or DOJ] defendant, and the individual-capacity [or personal-Donald Trump] defendant only sought one extension in one of the three cases—a single extension which was only prompted by plaintiffs’ having first sought an amended schedule seeking an extension for plaintiffs. [Plaintiffs, when seeking to appeal, were also dilatory. Rather than seeking to appeal and seeking certiorari soon after an unfavourable final judgment, plaintiffs took the full (or nearly the full) time period in which to file an appeal or certiorari.] Moreover, Judge Sullivan (D.D.C.) and Judge Messitte (D. Md.) were slow in calling for and holding an oral argument after briefing had closed, and they were slow to issue a final order after having held oral argument. Indeed, Messitte bifurcated his response to the official-capacity defendant’s motion to dismiss. Judge Messitte held two oral arguments and issued two separate opinions based on the official-capacity defendant’s single motion to dismiss. And, Messitte never resolved the individual-capacity defendant’s motion to dismiss.

Plaintiffs ran out the clock. That’s why the U.S. Supreme Court was left with no time and with nothing to do as the official-capacity claim became moot when Biden became President. And again: the plaintiffs chose not to actively pursue the individual-capacity claim. If there is blame here, look first to the plaintiffs and their (lawyers’) strategic choices. Then look to the lower courts. (By contrast, Judge Daniels (S.D.N.Y.) worked impartially, promptly, and professionally in every sense.*) Your blaming on the Supreme Court today’s lack of controlling and persuasive precedent regarding the meaning of the Constitution’s Foreign Emoluments Clause is, at best, mistaken, and at worst, Orwellian. 

Just to be clear: I participated (along with co-amici) in the three Emoluments Clauses cases as an amicus. (Professor Blackman et al. represented me.)

Seth

Seth Barrett Tillman, ‘Correcting a Popular Misconception,’ New Reform Club (May 23, 2025, 4:52 AM), <https://reformclub.blogspot.com/2025/05/correcting-popular-misconception.html>; 

*It is a misfortune for the legal system and wider society that today a federal judge’s meeting such aspirational expectations must be reported at all, and when reported, it is noteworthy because it is a fortunate, and somewhat, unexpected result.

 

NEW CHURCH IDEA

 "The more you sin, the more Jesus loves you!"™

How Soon They Forget: Arresting State Judges (CORRECTED)

Steve Burkholder, ‘Massachusetts judge and ex-official accused of preventing migrant’s arrest by ICE,’ Washington Post (Apr. 25, 2019, 7:46 PM), <https://tinyurl.com/ymdkc8us>: 

“A Massachusetts state court judge and a former court officer were charged by federal prosecutors Thursday with obstructing justice for allegedly preventing an immigration and customs officer from arresting an undocumented immigrant at a courthouse west of Boston last year.”

Arthur John Keeffe, ‘Practicing Lawyer’s Guide to the Current Law Magazines,’ 48 American Bar Asso. J. 491, 491 (1962) (explaining that during the American Civil War, federal authorities arrested Judge James L. Bartol of the Maryland Court of Appeals and Judge Richard Bennett Carmichael of the Maryland Circuit Court, and the “latter was arrested while conducting court”).

What is described above happened under President Obama Trump-45 and under President Lincoln. Judges are not above the law; judges cannot interpose their courthouse and personal rules and policies against federal officers. And when state judges violate the law, they must be arrested .  .  . like you and me and anyone else. We all know that—or, at least, we should. 

Seth 

Seth Barrett Tillman, ‘How Soon They Forget: Arresting State Judges,’ New Reform Club (Apr. 25, 2025, 14:12 PM) (CORRECTED), <https://reformclub.blogspot.com/2025/04/how-soon-they-forget-arresting-state.html>; 

Tillman on “Corruption” in a Free Speech Case

 

 

Extract from: Declaration of Professor Seth Barrett Tillman [on Behalf of Plaintiff Dinner Table Action], Dinner Table Action v. Schneider, Civ. A. No. 1:24-cv-00430-KFW (D. Me. Apr. 23, 2025) (Karen Frink Wolf, Magistrate Judge, sitting by consent), ECF No. 62-3 (declaration filed by Charles M. Miller, Esq., Institute for Free Speech, and Joshua D. Dunlap, Esq., Pierce Atwood LLP) (complaint filed Dec. 13, 2024), 2025 WL -------, <https://www.courtlistener.com/docket/69464009/dinner-table-action-v-schneider/>, <https://ssrn.com/abstract=5225614>. 

[34] We might . . . ask: Do the anti-corruption concerns of the Framers and ratifiers, apart from constitutional text, supply a free-standing interpretive principle through which we could understand the Constitution? I believe the answer to this question is “no.” Where there is genuine ambiguity in a constitutional provision, a fair-minded interpreter who is aiming to determine a clause’s original public meaning can look to purpose, background assumptions, and policy concerns (such as limiting corruption) to determine the meaning and scope of a provision’s text. But where there is no genuine ambiguity, the agreed text should control. Likewise, a fair-minded interpreter should not look to Framers’ and ratifiers’ purposes, background assumptions, and policy concerns to generate interpretive principles abstracted from constitutional text. Why? First, no one agreed to purpose, background assumptions, and policy concerns. What was agreed to was the Constitution’s text. The Constitution nowhere uses the language of “corruption.” Thus, our injecting “corruption” into the interpretive process risks displacing other purposes, background assumptions, and policy concerns which were in play in 1787–1788. Second, we should not confuse a widely shared policy concern (e.g., limiting corruption) with widespread agreement as to what that policy entails. I do not doubt that every member of the Constitutional Convention sought to limit corruption. Corruption-discourse was widespread in the 18th century, at the Constitutional Convention, and in public debate on the Constitution during 1787–1788. But a shared use of corruption-related language in political debate does not mean that the participants in that debate had any widely shared understanding of what corruption was, or what policies would effectively limit corruption, or what level of corruption (if any) should be risked to facilitate accomplishing other important and widely shared policy goals. It is precisely because such questions are, in my view, unanswerable that our understanding of the law of the Constitution should be tethered to constitutional text. Finally, “corruption” is an amorphous term, as is “virtue” or the “common good.” In my opinion, the idea that specific substantial legal issues should be decided by reference to such amorphous terms, abstracted from constitutional text, is fundamentally unsound.

[35]    Corruption in the form of quid-pro-quo bribery is relatively easy to identify. When an elected official solicits or accepts a bribe in the form of cash or property for performing or promising to perform some public act (or some inaction), all the benefits flow to the recipient, and none to the public. The transaction is usually hidden from public view, and the money or property may be secreted in a closet or [placed] under an assumed name or false identity. And the recipient is unlikely to pay taxes on his “earnings.” Perhaps, this relative ease in regard to identifying such transactions is one reason why this wrong, that is, quid-pro-quo bribery, is among the three charges which will support a conviction under the Constitution’s Impeachment Clause.[1] By contrast where a public official trades an official action for another public act, it is much less clear if the public official’s conduct is a bribe or corrupt. On Lawfare, my co-author and I wrote:

Judge Frank Easterbrook stated this principle in even stronger terms regarding the conviction and sentencing of Illinois Governor Rod Blagojevich, who offered to appoint Valerie Jarrett, a close associate of President-elect Obama, to a vacant U.S. Senate seat, in exchange for Blagojevich’s receiving an appointment to the Obama cabinet. Blagojevich was convicted on multiple counts. On appeal, in U.S. v. Blagojevich (2015), the U.S. Court of Appeals for the Seventh Circuit found that particular counts of his conviction could not stand. Judge Easterbrook explained that “a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.” He added that “[g]overnance would hardly be possible without” political log-rolling, “which allow[s] each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.”

Thus, according to Easterbrook, in such circumstances, even mixed motives are irrelevant. Such acts are presumptively lawful, and should not be investigated, let alone be considered for indictment or impeachment. If there is any evidence that there was some sort of secret benefit (such as a suitcase full of cash), then the government can investigate and, if warranted, prosecute that additional act. The secretness of the benefit is evidence of corrupt intent. Where one public official act is traded for another public official act, there has not been any illegal conduct.

We can think of one high-profile and far more brazen effort by a president to improve his party’s prospects through the use of official communications. In 1864, during the height of the Civil War, President Lincoln encouraged Gen. William Tecumseh Sherman to allow soldiers in the field to return to Indiana to vote. What was his primary motivation? It was to make sure that the government of Indiana remained in the hands of Republican loyalists who wished to continue the war until victory. This action risked [temporarily] undercutting the military effort by depleting the ranks. Lincoln had dueling motives. Privately, he sought to secure a victory for his party. This personal interest should not impugn his public motive: win the war and secure the nation.[2]

A common definition, but by no means universal definition, for “corruption,” is using public power or resources for private gain or ends. Using this definition, the key problem for deciding what is or is not corrupt would depend on what is considered “private gain or ends” as opposed to legitimate public ends.[3] In his PhD dissertation, Professor Jonathan Gienapp wrote:

In the wake of several political defeats (including the dispute over the [B]ank [of the United States]), Madison began spending more time with [his] old friend Jefferson. The two began more consciously recognizing the connection between their relationship and the political fate of the nation. In the spring of 1791 the two Virginians took a fateful “botanizing” tour north to New York and New England during which time they contemplated opposition and forged political alliances. From their perspective, the situation was too dire, Hamilton’s schemes too pernicious, and Washington’s innocence too unreliable not to take more drastic steps.

The critical move was to bring Philip Freneau, who had acquired a reputation through his earlier newspaper work, to Philadelphia. Just days after Washington signed the bank bill into law, [Secretary of State] Jefferson offered Freneau a position as translating clerk in the State [D]epartment in the hope that he would establish a newspaper to challenge John Fenno’s strongly pro-administration Gazette of the United States. Freneau agreed and in October began publishing the National Gazette, a paper which while at first tame would explode in anti-Hamiltonian hysteria the next spring in the wake of the financial speculations that had begun to unsettle the nation. With rival newspapers unleashed, before long open partisanship would consume the infant republic.[4]

I do not doubt Gienapp’s report of the history here. What is interesting about this passage is that it does not address whether or not, given all the circumstances, and then prevailing norms, Jefferson’s appointing Freneau to a public post was corrupt. Sometimes seeing the issue, and its complexity, is more important than identifying an answer (or, better, what one believes to be the answer).[5]

A corruption-minimalist would argue that Jefferson was not seizing Freneau’s public salary, and that (as far as we know) Freneau, like other potential candidates for the State Department translator position, was capable and, in fact, did his job. The public was not meaningfully disadvantaged by the appointment and the public received the primary benefits for which Congress authorized the creation of that position and its compensation with a salary drawn on the public treasury. Using that narrow framework, Jefferson’s conduct was not wrongful or corrupt. Furthermore, Jefferson subjectively believed that his faction’s winning seats in Congress and his prevailing in a future contest for the presidency was in the public interest.

By contrast, a corruption-maximalist would argue that Jefferson was not choosing the candidate most fit for the job. He was not using his control over a public position entirely for the ends for which Congress authorized the position and authorized its compensation with a salary drawn on the public treasury. Rather, he was using the position to facilitate an arguably private interest: his and his faction’s prevailing in contested elections. He was using public power, at least in part, for private ends. And in arriving at that conclusion, Jefferson’s subjective and self-interested beliefs as to what constitutes good policy and who is best capable of bringing that about (that is, himself or his political opponents) should play no role.

          So who is correct? The corruption-minimalist or the corruption-maximalist? Honestly, I do not think this question has anything like a clear answer. Furthermore, I do not think there is any way to determine if the Framers, ratifiers, and the public circa 1788 were, systematically as a group, closer to one of these two views or to the other. We do not have information in regard to their views at this level of specificity.[6] All we have is the language they agreed to in the as-ratified Constitution. It is the meaning of that language which should be our central focus.

          The real issue is something else entirely. Had Jefferson been impeached by the House or had a prosecutor sought to try Jefferson for (non-quid-pro-quo) criminal bribery or extortion, would the merits have been decided by any particular 18th conception of corruption? I think not. Rather corruption would have become a vehicle casually used to decide the political contest between the Hamiltonian and Jeffersonian factions—the incipient factions which gave birth to our first political parties as the Washington administration dragged on and came to a close.[7] And that’s the point: corruption, as that term was used in the late 18th century, is conceptually too amorphous to determine concrete legal questions involving the Constitution, and where that concept is given room, it merely provides an awkward arrow in the quiver held by partisans in naked contests for political power. Finally, it is worth noting that the Framers had actually included “corruption” as an impeachable offense in the draft constitution reported by the Committee of Detail, but it was subsequently dropped out.[8] As a result, the Framers did not include term “corruption” in any provision of the Constitution of 1788—so, whatever they meant by that term, they left it out, apparently deliberately after having considered including it, and for that reason, among others, we should not inject their understanding of that term back into our (and their) Constitution.

Seth Barrett Tillman, ‘Tillman on “Corruption” in a Free Speech Case,’ New Reform Club (Feb. 23, 2025, 3:13 AM), <https://reformclub.blogspot.com/2025/04/tillman-on-corruption-in-free-speech.html>; 

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[1] See U.S. Const. art. II, § 4 (“The President, Vice President and all civil Officers of the  United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” (emphasis added)).

[2] Josh Blackman & Seth Barrett Tillman, Defining a Theory of “Bribery” for Impeachment, Lawfare: Hard National Security Choices (Dec. 6, 2019, 12:43 PM), https://www.lawfaremedia.org/article/defining-theory-bribery-impeachment (bold added) (cited 6 times).

[3] There will always be borderline and other hardcases. For example, where a public official intentionally spends public funds absent legislative (or other necessary) authorization, such actions may be done for the best motives even if they are not strictly legal. But are such actions corrupt? Lincoln, for example, at the outbreak of Civil War hostilities, spent public funds to arm and protect the Union at a time when Congress was out of session and had not authorized such actions. See Note, Recent Emergency Legislation in West Germany, 82 Harv. L. Rev. 1704, 1708–09 (1969). But see Paul Einzig, The Control of the Purse 166 (1959) (noting a House of Commons 1784 resolution “to the effect that public officers responsible for paying out public money without the authority of an Appropriation Act would be guilty of [a] ‘high crime and misdemeanour, a daring breach of public trust, derogatory to the fundamental privileges of Parliament, and subversive to the Constitution.’” (quoting the resolution)).

[4] Jonathan Gienapp, The Transformation of the American Constitution 305–06 (2013) (footnotes omitted) (unpublished Ph.D. dissertation, Johns Hopkins University Dep’t of History) (on file with ProQuest Dissertations & Theses Global) (footnotes omitted).

[5] Compare Jonathan Gienapp, Removal and the Changing Debate over Executive Power at the Founding, 63 Am. J. Legal Hist. 229, 237–38 (2023) (arguing that Hamilton’s “The consent of that body would be necessary to displace as well as to appoint”-language in Federalist No. 77 referred to removal, and not to replacement), with 3 Joseph Story, Commentaries on the Constitution of the United States §§ 1532–1533 (Boston, Hilliard, Gray, & Co. 1833) (explaining that presidential “removal takes place in virtue of the new appointment [that is, by replacement], by mere operation of law” and that this was Hamilton’s position in Federalist No. 77). See generally Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010) (cited 51 times) (explaining that Hamilton’s use of “displace” in Federalist No. 77 is ambiguous, but remaining generally supportive of Justice Story’s position).

[6] See, e.g., [F.H. Buckley, The Republic of Virtue 72, 222 n.4 (2017)] (criticizing Professor Buckley’s position for extending well-grounded and historically-rooted corruption concerns relating to the executive’s “bribing” members of the legislature by appointing members to lucrative office . . . to other factual circumstances relating to a member of the legislature’s holding a second elected position absent intervention by the executive).

[7] One might say that Hamilton predicted all this in Federalist No. 65. In discussing impeachment, Hamilton wrote:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

Federalist No. 65 (1788) (Hamilton) (italics added).

[8] See Madison, Notes, in [2 The Records of the Federal Convention of 1787, at 186 (Max Farrand ed., 1911)] (reproducing August 6, 1787 report of the Committee of Detail); Journal, id. at 422 (approving, August 27, 1787, “treason, bribery, or corruption” language); Madison, Notes, id. at 550 (reporting September 8, 1787 debate where “mal-administration” was considered, but not voted upon, and “corruption” was apparently dropped in favor of “other high crimes & misdemeanors”); supra at 600 (reproducing, from September 12, 1787, the Committee of Style’s proposed draft impeachment provision, which did not make use of any “corruption” language).

Ruminations on Judge Boasberg’s Choices

 

Ruminations on Judge Boasberg’s Choices:

Holding Litigants in Contempt in the Context of Emergency Orders

 

          The Supreme Court has stayed Judge Boasberg’s orders. It appears a contempt citation running against the government or its counsel (the Department of Justice) or both is off the table—at least for now. But the procedural issues that arose in Boasberg’s case and several other recent cases against the Trump-47 administration are likely to arise again. Here, I want to clarify how federal courts and the wider public should understand contempt citations arising in the context of emergency litigation.

          In what might be called “normal” litigation, two parties are before the trial court. The plaintiff in civil litigation or the prosecutor in criminal litigation has dragooned a defendant before the court. The two parties are adversarial. The judge (with or without a jury) hears from a full set of live witnesses (from each party) subject to cross-examination under the rules of evidence. Such evidentiary rules exclude hearsay at the request of a party. In short, both parties are before the court—each has had notice and an opportunity to be heard. When the court issues its final order, both parties are bound. A party who violates such an order will face stiff sanctions, including contempt. A party seeking to escape the burdens of such an order has only a few paths forward: seek reconsideration from the trial court, appeal to a higher court, or seek a legislative change before the time for reconsideration and appeal has run out. (A daring litigant might also try a collateral attack based on the absence of jurisdiction.) 

          Prior to full trial on the merits, a plaintiff might also seek a preliminary or interlocutory injunction. The posture of the case is in some ways the same and in some ways different from “normal” litigation described above. There is a plaintiff who has dragooned a defendant before the court. That is the same. The two parties are adversarial. That is the same too. Where such preliminary relief is sought, the judge will hear the proceeding, but there will not be a jury. There will be no trial with both sides putting on a full set of live witnesses and such witnesses being subject to cross-examination. Indeed, there may be no witnesses at all. Rather, each side is likely to support its position only with sworn affidavits—that is hearsay. To put it another way, the very hearsay “evidence” that is regularly excluded during “normal” litigation is the evidence (and sometimes the only evidence) the courts regularly rely upon in determining whether to grant or deny a preliminary injunction. Indeed, that is one reason that there is no jury in such proceedings. The evidence, such as it is, is subject to abuse, exaggeration, and bias precisely because the affidavit’s declarant knows he will not be made subject to cross-examination. Likewise, it is hoped that a judge, being a repeat player unlike random and occasional jurors, will be more likely to see through such trickery in drafting affidavits.

          Given that the evidence at this stage is arguably unreliable, you might ask why grant preliminary relief at all? The traditional answer is that a defendant’s alleged wrongful conduct might be so transformative of the facts on the ground, that if the court waits to make its determination until only after full trial on the merits, with a full set of witnesses on both sides and subject to cross-examination, then by that time, no adequate relief may be possible. Indeed, no relief may be possible. And plaintiffs should not be left absent a remedy when their legal rights are being invaded, particularly when the harm suffered is such that they cannot be compensated for that harm after full trial on the merits. At least, that’s the rationale.

          In both the “normal” full trial on the merits, with live witnesses subject to cross-examination, and a preliminary injunction proceeding—both parties are before the trial court, and both parties have had notice and an opportunity to be heard. Here too, at the preliminary injunction stage, parties are expected to comply with the court’s decision to grant or deny injunctive relief. A noncompliant party will be subject to sanctions, including contempt.

          Finally, even prior to seeking a preliminary injunction, a plaintiff might seek emergency relief—an injunction for just 1 or 2 days, or even a for a few hours. This injunction, if granted, would last until a coordinate hearing is heard for a preliminary injunction. And if not granted, the plaintiff might still seek a preliminary injunction. Such an injunction is sometimes called a temporary restraining order (“TRO”) or interim injunction. The legal standard for granting a TRO is basically the same standard used in the context of a preliminary injunction hearing. But not all TROs are alike. Some TROs are heard ex parte (where the other party is not present), and some are heard ex parte and in chambers (where the public is excluded). See, e.g., Anton Piller KG v Manufacturing Processes Ltd (Denning MR and Omrod LJ) (hearing the proceeding, on appeal, ex parte and in-chambers).

          Why might the defendant be absent? There are a variety of possibilities. The defendant could not be found. The defendant could be found, but he only received service of process a very short time prior to the hearing—so, he physically could not reach the court in time for the hearing. Or he could reach the court, but he has had no time to find a lawyer or to consult with his lawyer about a defense against the TRO. (This was the position General Cadawalader was put in, in Ex parte Merryman, when on less than one-day’s notice Chief Justice Taney expected Cadwalader to find an attorney and put forward a defense for the army’s conduct during the U.S. Civil War.) Or, where the DOJ is the defendant’s attorney—the DOJ might not have had time to consult an agency client (if an agency is the defendant-client) or the President (if the President is the defendant-client). In either event, the defendant may be absent from the hearing or even if present, he has not had a meaningful opportunity to put a defense forward. Imagine finding yourself surprised one day confronted with the news that an emergency order has been issued against you and you had no notice and no opportunity to be heard. Is that really something a defendant must obey?

The law here is somewhat murky.

On the one hand, if the court has jurisdiction (to hear this type of dispute and jurisdiction over the defendant), then some courts and commentators say the answer is “yes.” Parties must obey courts, and judges expect to be obeyed. If the order is ex parte, that is just another type of court order, and a defendant’s disobedience risks sanctions, including contempt.

But not all courts and commentators agree. Some take the view that obedience to court orders is generally predicated on fair play and due process: that is, notice and an opportunity to be heard. As such, a defendant can risk disobedience to an ex parte court order. If the defendant persuades the court (in subsequent proceedings, reconsideration, or on appeal) that the ex parte TRO should not have been issued in the first place, then the defendant should not have had to comply with the order and should not face sanctions for disobedience to it while it was in effect. 

Again the law here is unclear. Compare, e.g., Hallmark Cards Inc. v Image Arts Ltd (Buckley LJ) (holding that where an ex parte order is set aside, the defendant should not be held in contempt for prior noncompliance while the order was in effect), with Wardle Fabrics Ltd v Myristis Ltd (Goulding J) (disobedience to an ex parte order amounts to contempt even if the order is later set aside). One prominent commentator, Professor Hilary Biehler, has taken the position that where an ex parte order is subsequently set aside courts should be “slow to impose penalties … in view of the potential for abuse”. Interestingly Biehler does not clarify if the abuse will arise in connection with underhanded or reckless conduct by the applicant seeking the TRO or from judges’ officiously seeking to punish defendants with meritorious positions, but not in technical compliance with ex parte courts orders which were subsequently set aside. See Biehler, Equity and the Law of Trusts in Ireland 777 (7th ed. 2020) (commenting on English and Irish case law).

If the DOJ refused to abide by a federal trial court judge’s order, and that order was granted ex parte, but subsequently it was set aside, then what should the judge do? My view is that holding the prevailing party in contempt should not be predicated on mere disobedience standing alone. Contempt’s normative justification is tied to fair play and due process, but where the process is ex parte, contempt is too harsh. What is driving the public mind (or part thereof) to press for contempt in the recent immigration cases is that a large part of the public believes the Trump-47 policies are lawless or heartless or both. But if the policies are lawless, that’s a merits determination. If the order was set aside on appeal, then the merits standing alone should not be sufficient cause to elicit a contempt order. As for heartless, I am sure that the majority of federal judges thinks that too. But that is a policy and values judgement—we hold elections to make those decisions—we do not issue contempt citations for being on the wrong side of a naked moral judgment untethered to established law.

          Where an ex parte TRO is set aside, I think a federal trial court judge has a narrow window of opportunity to hold a disobedient defendant in contempt. The judge must establish that the defendant’s conduct during and in the course of the litigation was illegal or inequitable. Here I am speaking not to the litigant’s underlying or out-of-court conduct, but his conduct in relation to his representation before the trial court. The conduct would have to be something akin to perjury, fraud, or unclean hands (albeit, that doctrine usually applies to plaintiffs’ seeking equitable relief, as opposed to defendants’ opposing an application for equitable relief).

          To put it another way, when a trial court’s ex parte TRO is on its way up through the court system on appeal, a judge should refrain from discussing contempt, in full public view, for noncompliance during that time. After the appellate process is over, then that’s the time to consider a contempt citation, and it should be done in full public view. Otherwise, the judge will look vicious, officious, and biased. And that cannot be right.

 

Seth Barrett Tillman, ‘Ruminations on Judge Boasberg’s Choices,’ New Reform Club (Apr. 11, 2025, 10:58 AM), <https://reformclub.blogspot.com/2025/04/ruminations-on-judge-boasbergs-choices.html>;