Not Guilty: A Response to Professor Michael Dorf

Some months ago, I had a deeply unpleasant experience with an academic author who had published an article in California Law Review. The author, in a discussion of one of my papers, put certain language in quotation marks. I never wrote that language: the quotation was created out of this air. This is the sort of thing student editors are supposed to catch. I did not demand a retraction; I did not threaten a legal action; I did not promise to rain down fire and brimstone on my opponents. I simply sent a short, crisp response to the law review’s online supplement. It was turned down. Instead of accepting my response, what the student editors did was this: they removed the offending quotation marks from the original article as it appears on the major electronic platforms—albeit, the hard copy, with the quotation marks, had already gone to press—and, they assured me that I had misread the material. The material was intended, not to quote me, but to quote someone else entirely—even though that other person had not made the statement which they now ascribed to her. Furthermore, they maintained that removing the quotation marks substantially solves the problem. No errata sheet was placed online or elsewhere. In my view, it was all a disgraceful sham, and the original author, the student editors, and the faculty advisors missed the mark. If you want to read about it, see Seth Barrett Tillman, The Foreign Emoluments Clause—Where the Bodies are Buried: “Idiosyncratic” Legal Positions, 59 S. Tex. L. Rev. 237, 268–69 (2017), https://ssrn.com/abstract=3096986 (discussing Victoria Nourse, Reclaiming the Constitutional Text from Originalism: The Case of Executive Power, 106 Calif. L. Rev. 1, 28 (2018), http://www.californialawreview.org/wp-content/uploads/2018/02/1Nourse-34.pdf).

Now you might ask: Seth—Why bother? The reason to act with reasonable alacrity in such situations is that misstatements, which go without response, are remembered as true. If truth is on your side, you are expected to respond, and failure to do so, means you accept the mischaracterization. Few things have a greater impression on a young lawyer’s intellectual development than discovering that the party who speaks last has a powerful tool. Likewise, in an academic debate, the last thing heard, even if a gross mischaracterization, may carry the day merely because it was the last thing heard.

All that takes me to this week’s misquotation and mischaracterization. It starts with what I wrote on Conlawprof. Here is what I wrote: 

It strikes me that there are two possibilities: [1] [Professor AAA] really believes what he has written, or [2] [Professor AAA] does not believe what he has written in response to me, and his response is some sort of enterprise in virtue signalling. Hmm. Hmm. Let me think this over.

I’m going to go with door number 2—here is why.

[Professsor BBB] made an analogy to the risks connected with the German election of 1933. When I suggested emigration as a response, among other potential responses, [Professsor AAA] responded by saying that he and [Professsor BBB] were not at particular consequential risk as “affluent white males.” (A fact which was entirely news to me—as I have never met him as far as I know.) Now, if [Professsor AAA] is correct, it means that Trump is not planning to detain and/or exterminate all his political opponents. Right? So Hitler and the risks of 1933 is not entirely on-point. If the argument, is that Trump, like Nazi Germany, might detain and then exterminate people, not based on political opinion, but in connection with race (other than being white) and other such characteristics, then [Professsor BBB] and [Professsor AAA] should build safe rooms (like the Dutch did in WWII) to hide people. Indeed, people on this list who are not white, but who agree with [Professsor AAA] and [Professsor BBB], might consider just buying some stand-by plane tickets or a small cabin abroad. But I have no good reason to believe that [Professsor BBB] or [Professsor AAA] or any person on this list (white or otherwise) has done any such thing. (Now, I could be wrong—feel free to respond off list and do so anonymously in order to keep your secret safe! Walls have ears and all that. And in these dark times, who can one really trust? Secret police are everywhere!)

As to broader based political and economic risk … [Professsor AAA] suggests there is “no refuge” from the consequences of the Trump nightmare. If the risk is an economic one, [Professsor AAA] and others might, at the very least, shift some of their liquid assets into land and/or chattel such as precious metals that will preserve value should Trump’s policies destroy the international economic order (as [Professsor AAA] believes will occur). If the risk is a global military one, then surely some areas are relatively safer than others? Even in WWII, Switzerland and most of South America went largely untouched by the war. And some areas which saw occupation and actual conflict were more damaged than other such areas. Surely if Trump is the concrete danger [Professsor AAA] believes, [Professsor AAA] could implement some concrete life plan to attenuate those risks for himself, and his loved ones, and others in the orbit of his personal influence, right? How could it be that doing nothing is every bit as good as any other potential option? How is that possible?

Like I said: it is all virtue signalling. [Professsor BBB], [Professsor AAA] (and [Professor CCC] too!): if you want more Trump, just continue to do precisely what you are doing. You are (I believe) making and minting Trump voters all the time.

Seth Barrett Tillman, Post, Conlawprof (Oct. 23, 2018, 5:35 PM). Likewise, earlier that same day I wrote:

I am pretty confident that the vast majority of people who supported Trump in the past don’t want to be “forgiv[en]” by you or by anyone else. And, if I had to guess, I’d say, it is the sort of language you have used here (albeit, this sort of language is not entirely unique) that encourages any number of non-ideologically committed voters to vote for Trump.

I would also add (as I have in the past on Conlawprof and elsewhere) that if you genuinely believed that the Republican’s retaining Congress would lead Trump to further an “authoritarian” or “fascistic” agenda, you could point to concrete plans you have made and are ready to implement (should the Republican’s retain Congress) in regard to protecting yourself, your family, and others in your personal orbit of influence. You could point to plans to emigrate—or, at least, to leave temporarily until the worst has passed. You would be ready to diversity your liquid assets into non-dollar-denominated instruments and into investments abroad. But if you have no such plans, then the natural conclusion is that this sort of language is all just political hyperbole and that you don’t genuinely believe what you are writing here.

Seth Barrett Tillman, Post, Conlawprof (Oct. 23, 2018, 3:47 PM) (bold and italics added).

Then, on Monday, October 29, 2018, Michael C. Dorf, on Dorf on Law, wrote:

Moreover, many of the conservatives on the list are never-Trumpers. Consequently, the small number of pro-Trump or pro-Trump-adjacent list members tend to be defensive, with the defensiveness sometimes turning into aggressiveness.

One list member has expressed his aggression by repeatedly doubting the sincerity of the most Trump-critical list members. The doubt takes the following form: You don’t really think Trump is the threat you claim he is, because if you really thought he was a fascist you would be taking active steps to emigrate or go into hiding or self-censor; the fact that you’re not doing any of that shows that your expressions of condemnation are mere self-serving virtue signaling.

This charge is unfair. One can think that Trump poses an existential threat to republican government but that the nature of the threat is of the sort that will take some time to fully materialize and metastasize, so that even if one thinks one eventually might need to emigrate, one might not want to start packing just yet. Moreover, the threat is unevenly distributed, so that one can think that one is not personally in peril, even as there is a threat to others.

Michael C. Dorf, Between Healthcare and Fascism: Chaos, Dorf on Law (Oct. 29, 2018, 7:00 AM), http://www.dorfonlaw.org/2018/10/between-healthcare-and-fascism-chaos.html (italics in Professor Dorf’s original). 

Now I am going to go out on a limb here—as best as I can tell, Professor Dorf was referring to—me. I encourage him to amend his online post accordingly. There is no good reason to deny this information to his readers. (N/B: 2Rs and 2Ts in Barrett, and 2Ls in Tillman)

So now you have what I wrote, and what Professor Dorf says I wrote. They are not quite the same—at least that is my position.

First, I don’t see where Professor Dorf can point to any language where I suggest that people believing Trump is a threat should (even as a prudential matter) “self-censor.” Where I mention that people might want to e-mail me their response off-list that was a joke—the two exclamation points are a giveaway. j-o-k-e spells “joke.”

Second, my primary point is that if you believe Trump is an existential threat, you should be doing something other than your normal routine. Something. Professor Dorf’s response is that the threat has not emerged yet, and, in the alternative, that others (as opposed to oneself) may be in peril. That justifies inaction now. But that was precisely the point I made. What I said was that if you were white, and you sincerely believe persons who were not white faced an existential threat, you could make a safe room in your house—like (some of) the Dutch in WWII did for Jews.

Moreover, even if the threat has not yet emerged, a person who genuinely believes it will emerge, or that there is a meaningful likelihood that it will emerge, that person could plan now for that dystopic future. As I explained, even if you have not bought a plane ticket to emigrate or to move abroad temporarily, you might investigate your options now (like where one could get a sabbatical) and have a plan ready to implement should the worst happen. The key word: plan. Again, my point was—in part—if you have not done any investigation, if you have no plan ready to go, if you have nothing ready to implement should it be needed, then the natural conclusion is not that you are waiting for the threat to emerge; rather, the natural conclusions is that you do not actually believe there is any meaningful threat.

Adults plan for the future.

So I posit the alternative. Much of what is written on Conlawprof and in other similar fora is hyperbole. The speakers do not mean what they are writing or saying. It is all virtue signalling. A cultural artefact of a traditional elite (including Democrats and Republicans) that saw itself and its worldview displaced in the 2016 election, and they fear it may happen again in 2018. Instead of serious introspection in regard to why their 2016 candidate, the Democratic Party’s candidate, lost, they attack the candidate who plainly announced what he thought (even to the extent of producing a Supreme Court short-list), who prevailed under the rules that existed at the time, and who has, by and large, except for that wall, done what he told the voters he would do. You would almost—I say “almost”—think some people have a problem with everyday democracy & normal politics. 

Finally, there is Professor Dorf’s characterization of my writing as exhibiting “defensiveness” and “aggressiveness.” Please—Michael—point out—and feel free to quote—what in my writing led you to make that characterization. Your conclusions seem (to me, at least) kind of strained: The quality of mercy and all that. 

Seth

Seth Barrett Tillman, Not Guilty: A Response to Professor Michael Dorf, New Reform Club (Oct. 31, 2018, 2:51 PM), 
https://reformclub.blogspot.com/2018/10/not-guilty-response-to-professor.html. 

Is Trump a Dictator?: Tillman’s Response on Conlawprof

The fact that the President is likely wrong about [birth right citizenship] ... does not ineluctably lead to the conclusion that we live in a constitutional dictatorship. If the President’s executive order is contested in litigation, and the federal courts rule against the President, and the President abides by any adverse order (as he has done to date), then it can fairly be said that we do not live under a constitutional dictatorship. In such a situation, we have a robust rule of law society. I see no reason to believe that this action by the President is what Professor Paulsen (in his prior publications) has described (for better or worse) as an exercise of a purported “Merryman Power.”

The same logic applies each and every time Congress passes an unconstitutional statute—even a facially unconstitutional one. As long as the President might fail to enforce it, or as long as the courts can strike it down—there is no dictatorship.

The fact that a branch might act illegally / unconstitutionally does not mean we lack the rule of law or that we are now under a dictatorship. These things happen all the time—sometimes by the President, sometimes by the Congress, sometimes by the Courts (unless you think that wearing a robe means you cannot act lawlessly / unconstitutionally).

I might add that the overwhelming majority of federal judges remain non-Trump appointees. I see no reason to believe that they are enamoured or afraid to rule against the President. See Judge Sullivan in D.C. in the Emoluments Clauses case; and Judge Messitte in D. Md. (same). Again, the President’s party has majority control in both houses, and his party might retain that control in the election next week. But his support among his own members is not deep. They could easily turn on him. Consider: Governor Evan Mecham.

What the President has done here is to purchase a lottery ticket—that he might prevail in the courts (as unlikely as that may seem), and if he does not prevail, then he is hoping that the overreaction of his opponents (or the misstatements they make on the way) will earn him additional political support among voters. None of this is anything but normal politics.

Part II: De We Live in a Constitutional Dictatorship?

It all depends on why the courts deferred [to the President].

If the courts deferred to the President’s view here because he (the President) threatened them (the courts) or because he threatened not to obey them, and they gave in to his threat, then that is (or is, at least, close) to a dictatorship. (This is what Professor Fallon thinks happened in Ex parte Quirin—and [yet] who now calls FDR a dictator?)

But if the courts deferred because they agreed with the President—that he has the power to make this determination—because it corrects a prior misunderstanding, because it is good policy, because it is correct as a matter of original public meaning, or for any other reason that they [the courts] think satisfactory—and in reaching an independent judgment their decision-making was unimpeded, then that result might be unfortunate, it might be a mistake, but it is not anything like a dictatorship. Why? Because as long as the courts make the call (even if mistaken) we are not being ruled by the dictator—our rights will depend on the intervening agency of someone or something other than the purported dictator. Here it would be the courts—as it usually is.

So the fact that the courts might defer does not ineluctably lead to the conclusion that we live under a dictatorship. Isn’t the dominant understanding of what makes a dictatorship ... is rule by the command of the dictator?

Part III: The President and Constitutional Litigation

It is not uncommon for an Executive Branch officer to take the position: I am not sure what the law is—I can leave it to the courts. Professor ZZZ thinks the President is involved in some sort of lie. That’s just a way of his stating that he knows what the Thirteenth Amendment means, and [the President’s] departure from what he knows as authoritative casts the other as lying.

But the President is not a Thirteenth Amendment scholar, and he may very well have been told birth right citizenship is the historical & majority view, but there is a minority view developed in the odd case and in the odd law review article—long predating your administration. And Trump’s response (like many other officials and officers) in similar positions—OK, what do I have to do to get the courts to decide?

There was a time, not so long ago, that the largest number of legal academics used to think well of Presidents (and their staff) engineering such cases—rather than avoiding the courts and ruling by fiat or by executive actions which escape (and seek to escape all) judicial review. Here Trump has thrown the issue into the public square for public debate [before an impending election!] and into the courts. He is not ruling as a dictator. He is embracing politics—normal politics. Now compare and contrast this conduct to another President who uses “prosecutorial discretion” in a way that might defeat judicial review—because no one can show standing. Who is the dictator? And who is undermining judicial review of major Executive Branch policy initiatives?

Seth

Seth Barrett Tillman, Is Trump a Dictator?: Tillman’s Response on Conlawprof, New Reform Club (Oct. 31, 2018, 5:18 AM), https://reformclub.blogspot.com/2018/10/is-trump-dictator-tillmans-response-on.html. 

Conlawprof and the Caravan

Professor AAA wrote: “So 6000 unarmed poor people who might get here by Christmas if they walk fast requires us to talk about assigning 800 members of the military to the border to do what exactly[?]” The ability of our officials to process arguably legitimate asylum claims depends, in part, on the human and physical resources at their disposal, but it also depends on the willingness of those crossing the frontier to present themselves to our officials for processing. Border control officials cannot process arguably legitimate asylum claims if would-be asylum seekers cross our borders, and knowingly and surreptitiously circumvent inspection and identification, and purposefully refuse to file for asylum. So one thing U.S. troops at the border might do…is to present a credible threat incentivizing law-abiding behaviour. Go figure: it is not so mysterious. This is the norm, if not at most borders in the world, at least at many. Believing otherwise is tantamount to some religious adventure in American exceptionalism.

Professor AAA suggested that the “caravan” (I use this term for want of a better one) “might get here by Christmas.” (I assume he meant “by Christmas or some time thereafter,” as opposed to “no later than Christmas.”) I applaud his making a falsifiable claim. I do not imagine this claim will age particularly well—but we will see.

Finally, Professor AAA wrote: “Sounds like we might need more people to process their asylum claims and offer them some food and water.” What precisely does Professor AAA mean by “need”? Did he mean, these people are a credible threat, particularly if desperately poor and travelling with children who are suffering and vulnerable? Did he mean that a spouse might be moved to engage in violent crime in order to “protect” a pregnant wife in urgent need? In other words, “need” is a code word. We “need” to help them because otherwise they are a “threat”?

Or, alternatively, as I expect he meant, what Professor AAA meant by “need” is that we “need” to help them because they are poor and vulnerable. But if that is what he meant…won’t he please share what precisely he has done to date acting on this profound moral intuition? Surely if he really believes the force of this moral intuition, he can point to some meaningfully significant action or contribution (beyond paying lawful taxes) that illustrates his sincerity—i.e., that he really believes what he has written—i.e., that he really believes that we (including himself) need to affirmatively aid those in the caravan. If not, is not the obvious conclusion that he does not really believe the moral claim he is making, and although he does not believe it, he seeks to convince the rest of us to act upon it via his post here. Surely, it cannot be right that the only duties the “needy” caravan members impose on Professor AAA and on the rest of us are to write posts on Conlawprof and to vote for the politically correct party?

Furthermore, has Professor AAA considered if his moral claim is robust? Surely there are a great many people in the world—some in our nation—and some at home in the nations of origin of the caravan itself—who are more poor and more vulnerable than the people in the caravan. The people in the caravan are relatively young and relatively healthy. For those of us unwilling to see the moral force of the claim that we must give up all that we hold dear to those in greater need, we must choose or select the objects of our bounty in some fashion other than the not-so-happy “accident” of television presenting newcomers to our immediate view. If our means are limited, as mine are, these newcomers have no particular or strong claim on us based on “need,” as in their need, to the extent that we can identify many others in greater need who we are willing to share our bounty with.

So I write it yet again. I don’t really believe Professor AAA believes what he has written. In my opinion, his position is a cultural artefact…an expression of virtue signalling to an audience who appreciates such views. But in my opinion, the reality is the speaker does not mean what he wrote, does not act on his own advice (at least, he has not indicated otherwise), and does not actually expect his immediate audience to act on his advice. This sort of thinking may very well be the norm in academia, including legal academia. And if true, contra Professor BBB, it is a very good thing that law professors don’t fully engage with our students about the right, the just, and the good. In regard to these permanent things, we have no greater insight than the rider on the Clapham omnibus.

Seth

See Patrick Devlin, The Enforcement of Morals (Oxford University Press 1965) 15, https://tinyurl.com/yba34q9s; see also Enoch Powell, Wrestling with the Angel (Sheldon Press 1977) vii, 30, 46, https://tinyurl.com/ybetdmp9 (quoting interview with Bryan Magee on London Weekend Television).  

Seth Barrett Tillman, Conlawprof and the Caravan, New Reform Club (Oct. 26, 2018, 1:53 AM), https://reformclub.blogspot.com/2018/10/conlawprof-and-caravan.html. 

Return to Peak CONLAWPROF

It strikes me that there are two possibilities: [1] Professor AAA really believes what he has written, or [2] Professor AAA does not believe what he has written in response to me, and his response is some sort of enterprise in virtue signalling. Hmm. Hmm. Let me think this over.

I’m going to go with door number 2—here is why.

Professor BBB made an analogy to the risks connected with the German election of 1933. When I suggested emigration as a response, among other potential responses, Professor AAA responded by saying that he and Professor BBB were not at particular consequential risk as “affluent white males.” (A fact which was entirely news to me--as I have never met Professor BBB as far as I know.) Now, if Professor AAA is correct, it means that Trump is not planning to detain and/or exterminate all his political opponents. Right? So Hitler and the risks of 1933 are not entirely on-point. If the argument is that Trump, like Nazi Germany, might detain and then exterminate people, not based on political opinion, but in connection with race (other than being white) and other such characteristics, then Professor BBB and Professor AAA should build safe rooms (like the Dutch did in WWII) to hide people. Indeed, people on this list who are not white, but who agree with Professor AAA and Professor BBB, might consider just buying some stand-by plane tickets or a small cabin abroad. But I have no good reason to believe that Professor BBB or Professor AAA or any person on this list (white or otherwise) has done any such thing. (Now, I could be wrong—feel free to respond off list and do so anonymously in order to keep your secret safe! Walls have ears and all that. And in these dark times, who can one really trust? Secret police are everywhere!)

As to broader based political and economic risk … Professor AAA suggests there is “no refuge” from the consequences of the Trump nightmare. If the risk is an economic one, Professor AAA and others might, at the very least, shift some of their liquid assets into land and/or chattel such as precious metals that will preserve value should Trump’s policies destroy the international economic order (as Professor AAA believes will occur). If the risk is a global military one, then surely some areas are relatively safer than others, right? Even in WWII, Switzerland and most of South America went largely untouched by the war. And some areas which saw occupation and actual conflict were more damaged than other such areas. Surely if Trump is the concrete danger Professor AAA believes, Professor AAA could implement some concrete life plan to attenuate those risks for himself, and his loved ones, and others in the orbit of his personal influence, right? How could it be that doing nothing is every bit as good as any other potential option? How is that possible?

Like I said: it is all virtue signalling. Professor AAA, BBB (and CCC too!): if you want more Trump, just continue to do precisely what you are doing. You are (I believe) making and minting Trump voters all the time.

Seth

Seth Barrett Tillman, Return to Peak CONLAWPROF, New Reform Club (Oct. 23, 2018, 12:48 PM), https://reformclub.blogspot.com/2018/10/return-to-peak-conlawprof.html. 

Today on CONLAWPROF

re: "I can construct 'rational explanations' for why our fellow citizens might have voted for Trump in 2016; by this point, I’m less forgiving." (emphasis added)

[Dear Professor],

I am pretty confident that the vast majority of people who supported Trump in the past don't want to be "forgiv[en]" by you or by anyone else. And, if I had to guess, I'd say, it is the sort of language you have used here (albeit, this sort of language is not entirely unique) that encourages any number of non-ideologically committed voters to vote for Trump. 

I would also add (as I have in the past on CONLAWPROF and elsewhere) that if you genuinely believed that the Republican's retaining Congress would lead Trump to further an "authoritarian" or "fascistic" agenda, you could point to concrete plans you have made and are ready to implement (should the Republicans retain Congress) in regard to protecting yourself, your family, and others in your personal orbit of influence. You could point to plans to emigrate -- or, at least, to leave temporarily until the worst has passed. You would be ready to diversify your liquid assets into non-dollar-denominated instruments and into investments abroad. But if you have no such plans, then the natural conclusion is that this sort of language is all just political hyperbole and that you don't genuinely believe what you are writing here.  See also: https://reformclub.blogspot.com/2016/11/two-queries-posted-on-conlawprof-comey.html.  

Seth

Seth Barrett Tillman, Today on CONLAWPROF, New Reform Club (Oct. 23, 2018, 10:52 AM), https://reformclub.blogspot.com/2018/10/today-on-conlawprof.html. 

You Be The Judge: An Exchange on Twitter on Summary Executions at the End of the U.S. Civil War

the democrats learned nothing from 2016  👻‏Verified account @isamuel

Because this apparently needs saying periodically: Robert E. Lee was a traitor, fought for the slave empire, and should have been summarily executed at the end of the war.

7:33 am - 13 Oct 2018 From Manhattan, NY

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23 replies .28 retweets177 likes

 

 

 

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1. New conversation
   Marty Lederman‏ @marty_lederman Oct 13
   Replying to @isamuel
   "Should have been summarily executed"?!
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   the democrats learned nothing from 2016  👻‏Verified account @isamuel Oct 13
   What I’m hearing is that this may not comport with traditional notions of the law of war?
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   Marty Lederman‏ @marty_lederman Oct 13
   and a little thing called the constitution
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   the democrats learned nothing from 2016  👻‏Verified account @isamuel Oct 13
   What process is “due” in this circumstance seems open to fair debate
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   Prof. Garrett Epps‏ @Profepps Oct 13
   I yield to no one in my awareness of the harm this cult has done but SOUTH was the region of summary justice, the mob, the noose and the bastinado. The victory of the North was a victory for Constitution and Law. Celebrating that victory with a lynching would have been dreadful.
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   the democrats learned nothing from 2016  👻‏Verified account @isamuel Oct 13
   Describing the hypothetical death of the white leader of the Confederacy as “lynching” seems like a really dissonant comparison
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   Prof. Garrett Epps‏ @Profepps Oct 13
   If done without process that’s what it would have been.
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   the democrats learned nothing from 2016  👻‏Verified account @isamuel Oct 13
   It would have had process—a summary process, as is often used in many important contexts. Immigrants are removed every day in summary proceedings where no factual questions are at issue. Summary judgment can move billions of dollars around
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   Marty Lederman‏ @marty_lederman Oct 14
   We have a process known as summary judgment and therefore we should have summary treason trials and executions?
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   the democrats learned nothing from 2016  👻‏Verified account @isamuel Oct 14
   Arguing that the most infamous traitor in American history deserved certain treatment does not in any sense imply that it should be routine. To the contrary, actually.
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   Jonathan H. Adler‏Verified account @jadler1969 Oct 14
   Cf. Ex parte Quirin?
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   Marty Lederman‏ @marty_lederman Oct 14
   1/ OK, let's back up and take stock here. The Constitution, the Geneva Conventions and CIL all prohibit summary executions of those in one's custody. It once was the case that spies could be summarily executed (e.g., Nathan Hale), but no more.
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   Marty Lederman‏ @marty_lederman Oct 14
   2/ Spies have also long had a sui generis status, for reasons that are obscure. I discuss this topic at great length in Part IV-B of this article (the most thorough modern treatment, I'm fairly sure, although not everyone will agree w/my explanations). https://georgetownlawjournal.org/articles/241/of-spies-saboteurs-enemy/pdf …
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   Marty Lederman‏ @marty_lederman Oct 14
   3/ In any event, Lee wasn't a spy. Nor did he commit any obvious violations of the laws of war (or in any event that's not what Ian was getting at). So Quirin is inapposite even if its holding--that military courts can try law-of-war violations--was correct. See Part III of ...
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   Marty Lederman‏ @marty_lederman Oct 14
   4/ ... of my Spies/Saboteurs article. Ian is focused on treason. The issue of whether it could be tried by a military court--w/o jury and Art. III judge--arose after the Civil War when Jeff Davis was captured. AG Speed concluded that it could only be tried in civilian court ...
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   Marty Lederman‏ @marty_lederman Oct 14
   5/ ... according to the heightened evidentiary standards that the Constitution prescribes for treason (which of course would have been easy to prove in the cases of Lee and Davis). The Court in Quirin actually later intimated the same, see 317 U.S. at 38-39. Ultimately, ...
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   New conversation
   Marty Lederman‏ @marty_lederman Oct 14
   6/ ... Davis was released, not tried, in accord w/Lincoln's expectations/exhortations before he died ("w/malice towards none; charity for all"). I discuss all this in Part III-C of this article. See also Cynthia Nicoletti's recent book on Davis's capture. https://www.columbialawreview.org/wp-content/uploads/2018/03/Lederman_The-Law-Of-The-Lincoln-Assassination.pdf …
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   Marty Lederman‏ @marty_lederman Oct 14
   7/ I don't believe there's any serious case to be made that treason can be tried in a military tribunal--let alone be punished with summary execution.
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   the democrats learned nothing from 2016  👻‏Verified account @isamuel Oct 14
   You are simultaneously convincing me that I might have made a mistake & making me glad I did, because I’m learning a lot. Looking forward to reading the article!
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   Marty Lederman‏ @marty_lederman Oct 14
   Thanks, hope you enjoy them!
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   End of conversation
2. New conversation
   Prof. Garrett Epps‏ @Profepps Oct 13
   Replying to @isamuel
   Mercifully there were no summary executions at the end of the Cibil War(and only one war crimes trial), and I don’t regret that; Lee did however commit treason.
   1 reply .0 retweets15 likes
    
    
    
   New conversation
   joke space wetsuit‏ @theraghav Oct 13
   There was way more than one war crimes trial after the Civil War.
   0 replies .0 retweets0 likes
    
    
    

Seth Barrett Tillman, You Be The Judge: An Exchange on Twitter on Summary Executions at the End of the U.S. Civil War, New Reform Club (Oct. 17, 2018, 2:24 AM), https://reformclub.blogspot.com/2018/10/you-be-judge-exchange-on-twitter-on.html.