"There are only two ways of telling the complete truth—anonymously and posthumously."Thomas Sowell

Sunday, April 08, 2018

The Great Convention of 2018






Seth Barrett Tillman, The Great Convention of 2018, New Reform Club (April 8, 2018, 6:22 PM), 
https://reformclub.blogspot.com/2018/04/the-great-convention-of-2018.html



Monday, April 02, 2018

Professor Nourse on the Three Emoluments Clauses Cases Against the President


Notice that Professor Nourse ends her analysis with “even President Trump’s lawyers now admit that the Foreign Emoluments Clause does in fact cover the President.” Victoria Nourse, Reclaiming the Constitutional Text from Originalism: The Case of Executive Power, 106 Calif. L. Rev. 1, 28 (Feb. 2018) (emphasis added). Why does Nourse use the word “now”? Why does she use the word “admit”? The President’s personal lawyers took the position that the Foreign Emoluments Clause applies to the President. See Sheri Dillon et al., Morgan Lewis LLP White Paper, Conflicts of Interest and the President (Jan. 11, 2017), [https://assets.documentcloud.org/documents/3280261/MLB-White-Paper-1-10-Pm.pdf] [https://perma.cc/B8BU-X4U3]. This document was made public more than a full calendar year before Nourse published her paper in California law Review. So why does Nourse write “now admit”? And why write “admit”? Is there any evidence that the President’s Morgan Lewis attorneys had first taken or considered taking a different position, but were pressed or consented to making the “admission” that the Foreign Emoluments Clause applies to the President? I have no good reason to believe that Morgan Lewis counsel considered the alternative: i.e., that the clause does not apply to the President.

Moreover, Department of Justice counsel representing the President, in his official capacity, i.e., counsel who have submitted actual court filings, and who have written on this issue more recently than the President’s Morgan Lewis counsel, have made no such “admission.” Department of Justice Counsel have announced this more nuanced view both before and after Nourse published her article. Compare President of the United States’ Statement of Interest at 4 n.2, DC & MD v. Trump, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Mar. 26, 2018) (Messitte, J.), Dkt. No. 100, 2018 WL 1511801, https://ssrn.com/abstract=3150220 (“We assume for purposes of this Statement that the President is subject to the Foreign Emoluments Clause.”) (filed after Nourse published her article in February 2018), with Letter from Department of Justice Counsel to Judge Daniels at 1, CREW v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Oct. 25, 2017) (Daniels, J.), Dkt. No. 98 (“[T]he government has not conceded that the President is subject to the Foreign Emoluments Clause.”) (filed before Nourse published her article in February 2018, but long after Morgan Lewis counsel had made public their legal advice for the President). It appears that Professor Nourse does not understand the prior filings, current posture, and the chronology of events in the three Emoluments Clauses cases.

Seth Barrett Tillman, Professor Nourse on the Three Emoluments Clauses Cases Against the President, New Reform Club (April 2, 2018, 12:37 PM), 



Tillman's Primary Briefs, Publications, etc on the "Office" Question


Briefs
Letter Brief filing Supplemental Authority, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Mar. 19, 2018) (Messitte, J.), Dkt. No. 97, https://www.scribd.com/document/374271648/D-C-and-Maryland-v-Trump-Notice-of-Supplemental-Authority-3-19-18https://ssrn.com/abstract=3141732;


Letter Brief, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, Seeking an Order in regard to Plaintiffs’ Motion to Amend the Complaint, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Jan. 29, 2018) (Messitte, J.), Dkt. No. 88, 2018 WL 1128948, https://www.scribd.com/document/370301834/Maryland-v-Trump-Correspondence-1-29-18, https://ssrn.com/abstract=3112896;

 

Corrected Response [Brief] of Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Dec. 31, 2017) (Messitte, J.), Dkt. No. 77, 2017 WL 6880026, 2017 U.S. Dist. Ct. Motions LEXIS 466, https://ssrn.com/abstract=3089868;

 

Motion and Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Oct. 6, 2017) (Messitte, J.), Dkt. No. 27-1, 2017 WL 4685826, 2017 U.S. Dist. Ct. Briefs LEXIS 410, https://ssrn.com/abstract=2996355;


Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, Senator Richard Blumenthal v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-01154-EGS (D.D.C. Sept. 19, 2017) (Sullivan, J.), Dkt. No. 16-1, 2017 WL 4230605, 2017 U.S. Dist. Ct. Briefs LEXIS 30, https://ssrn.com/abstract=2996384;

Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae Judicial Education Project’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017) (Daniels, J.), Dkt. No. 85-1, 2017 WL 4685886, 2017 U.S. Dist. Ct. Briefs LEXIS 408, https://ssrn.com/abstract=3002345;

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, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y. June 16, 2017) (Abrams, J.), Dkt. No. 37, 2017 WL 2692500, 2017 U.S. Dist. Ct. Briefs LEXIS 402, https://ssrn.com/abstract=2985843;

Declaration: A Court Filing:
Declaration of Seth Barrett Tillman, Lecturer (Exhibit D), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae Judicial Education Project’s Response to Amici Curiae by Certain Legal Historians, CREW v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017) (Daniels, J.), Dkt. No. 85-5, 2017 WL 7795997, https://ssrn.com/abstract=3037107;

Peer Reviewed Puublications:
Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5 Brit. J. Amer. Leg. Studies 95 (2016) (peer reviewed);

Seth Barrett Tillman, Why Professor Lessig’s “Dependence Corruption” Is Not a Founding-Era Concept, 13 Election L.J. 336 (2014) (peer reviewed);

Other Major Publications:
Seth Barrett Tillman, The Foreign Emoluments Clause—Where the Bodies are Buried: “Idiosyncratic” Legal Positions, 59 S. Tex. L. Rev. ____ (forth. circa April 2018) (invited symposium contribution), https://ssrn.com/abstract=3096986;

Seth Barrett Tillman, Business Transactions and President Trump’s “Emoluments” Problem, 40 Harv. J.L. & Pub. Pol’y 759 (2017);

Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014);

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);


Seth Barrett Tillman, Closing Statement, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. Colloquy 180 (2013;



Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107 (2009); 4 Duke J. Const. L. & Pub. Pol’y Sidebar 1 (2008);



Seth Barrett Tillman, Opening Statement, Why President-Elect Obama May Keep His Senate Seat After Assuming the Presidency, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pennsylvania L. Rev. PENNumbra 134, 135–40 (2008);

Seth Barrett Tillman, Closing Statement, An “Utterly Implausible” Interpretation of the Constitution: A Reply to Professor Steven G. Calabresi, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pennsylvania L. Rev. PENNumbra 134, 146–53 (2008);

Lesser Publications:
Zephyr Teachout & Seth Barrett Tillman, Common Interpretation, The Foreign Emoluments Clause: Article I, Section 9, Clause 8, in The Interactive Constitution (National Constitution Center 2016), http://tinyurl.com/jxro4o9;

Seth Barrett Tillman, Matters of Debate, The Foreign Emoluments Clause Reached Only Appointed Officers, in The Interactive Constitution (National Constitution Center 2016), https://tinyurl.com/ybgeu3cd;

Opinion Editorials & Letters to the Editor
Josh Blackman & Seth Barrett Tillman, Opinion Editorial, The ‘Resistance’ vs. George Washington, Wall Street Journal, Oct. 15, 2017, at A17, https://www.wsj.com/articles/the-resistance-vs-george-washington-1508105637;

Josh Blackman & Seth Barrett Tillman, Opinion Editorial, Yes, Trump Can Accept Gifts, NY Times, July 13, 2017, http://ssrn.com/abstract=2999976, http://tinyurl.com/ycqa26bs;

Seth Barrett Tillman, Letter to the Editor, Oath of Officers, 15(3) Claremont Review of Books 11, Summer 2015, http://ssrn.com/abstract=2623473;

Seth Barrett Tillman, Member of the House of Representatives and Vice President of the US: Can Paul Ryan Hold Both Positions at the Same Time?, Jurist–Forum, Aug. 23, 2012, http://jurist.org/forum/2012/08/seth-barrett-tillman-vice-presidency.php;

Conference Paper:
Seth Barrett Tillman, Loyola University of Chicago Law School, Fourth Annual Constitutional Law Colloquium Conference Paper, Six Puzzles for Professor Akhil Amar (2013), https://ssrn.com/abstract=2173899 (citing to the Hamilton documents);





Unpublished Manuscripts

Seth Barrett Tillman, Either/Or: Professors Zephyr Rain Teachout and Akhil Reed Amar—Contradictions and Reconciliation (2012) (unpublished manuscript), https://ssrn.com/abstract=1970909;

Seth Barrett Tillman, Hamilton, the Secretary of the Senate, and Jefferson: Three (or Four) Views of the Cathedral and the Mysterious Identity of the ‘Officers under the United States’ (2011) (unpublished manuscript), https://works.bepress.com/seth_barrett_tillman/203/ (click under “Related Files” for images of the various Hamilton documents);

Seth Barrett Tillman, Legislative Officer Succession to the Presidency (April 6, 2007) (unpublished manuscript), http://tinyurl.com/pcqdp3 (parts I & II), http://tinyurl.com/qmzu26 (part III) (click under “Citation Information” for charts);


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Seth Barrett Tillman, Tillman's Primary Briefs, Publications, etc on the "Office" Question
New Reform Club (April 2, 2018, 9:12 AM), 
https://reformclub.blogspot.com/2018/04/tillmans-primary-briefs-publications.html




My publications can be found on Westlaw, LexisNexis, HeinOnline, and on the Social Science Research Network. See Scholarly Papers [of Seth Barrett Tillman], Social Science Research Network (last visited Jan. 7, 2018), https://ssrn.com/author=345891