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Saturday, February 08, 2020

The Ancients and the Recess Appointments Clause

Certainly, the ancients understood the difference between an officer and an acting officer. See, e.g., 5 Livy: From the Founding of the City (trans. B.O. Foster, reprint 1982):
   Nearly all the annalists state that Fabius was dictator in his campaign against Hannibal; Coelius even writes that he was the first to be created dictator by the people. But Coelius and the rest forget that only the consul Gnaeus Servilius, who was then far away in his province of Gaul, had the right of naming a dictator. It was because the nation, appalled by their great disaster, could not put up with so long a delay that resort was had to the popular election of an acting dictator.
Id. at book 22, ch. 31, at 307. Furthermore, the editor explains: “the erroneous impression that Fabius was in 217 formally elected dictator, whereas he was in fact invested with the powers of a dictator but not with the actual title.” Id. at 307 n.2. Similar considerations may apply to recess appointees. See U.S. Const. art. II, § 2, cl. 3 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”).

The above is from: Seth Barrett Tillman, The 1792 Madison-to-Pendleton Letter: A Time for Reconsideration, Reflection, and Response? (Feb. 5, 2020), <>. 

Seth Barrett Tillman, The Ancients and the Recess Appointments Clause, New Reform Club (Feb. 8, 2020, 3:39 PM), <>. 

Friday, February 07, 2020

Different Points of View can both be Correct:

MacArthur on Eisenhower: “the best clerk I ever had.”

Eisenhower on his time as MacArthur’s chief of staff: “I took four years of acting lessons from MacArthur.”

Seth Barrett Tillman, Different Points of View can both be Correct, New Reform Club (Feb. 7, 2020, 3:41 AM), <>. 

Thursday, February 06, 2020

The 1837 Senate Expunging Resolution

Letter to the Editor

February 6, 2020

RE: Steve Nelson, Republicans planning to expunge Trump impeachment if they win back the House, New York Post (Feb. 5, 2020, 12:34 PM), <>.

Your article states: “Backers of the notion point to the House voting in 1837 to expunge a censure of President Andrew Jackson.” That’s not quite right. What happened was that the Senate censured Jackson in 1834. Afterwards, in 1837, a successor Senate expunged from the Senate’s journal the entry for the censure. The House was not involved—nor was the impeachment process.


Seth Barrett Tillman

Seth Barrett Tillman, The 1837 Senate Expunging Resolution, New Reform Club (Feb. 6, 2020, 2:02 PM), <>. 

Monday, February 03, 2020

Tabulating Cases For and Against the President

One more time: circa 1797-1799, Senator Blount did not resign. He was expelled. He was impeached by the House. The Senate dismissed the articles of impeachment. In the Senate impeachment trial proceedings, there were ZERO witnesses. The dismissal was akin to a Federal Rules of Civil Procedure 12(b)(1) dismissal (for lack of jurisdiction)—where a court can grant dismissal absent witnesses. It is also akin to a 12(b)(6) dismissal (for failure to state a cognizable claim) and a Rule 56 summary judgment dismissal (where there is no dispute as to a material fact). In all these situations, a court of record can dismiss absent witnesses heard in open court.

A chart was circulated widely across the internet and Twitter-law suggesting that all Senate impeachment trials have had witnesses. It left off Blount: the first impeachment and a much studied impeachment. Hard to miss. Once criticized: the chart was defended on the grounds that Blount had resigned. That was not true.

Then it was defended on the grounds that the dismissal in Blount was jurisdictional. But both 12(b)(1) dismissals for absence of jurisdiction and 12(b)(6) dismissals for failure to state a claim are done absent witnesses. So the “jurisdictional” exception made no sense. Trump’s argument was, in part, that what he did was entirely correct, ethical, legal, and constitutional. That is: it was not a constitutional violation. Such a defense is akin to a 12(b)(6) dismissal. That’s akin to Blount.

Eventually, a new chart came out—it included Blount and a few other impeachments which had been left off the first chart—these other Senate impeachment trials involved resignations and so no witnesses were involved in those proceedings.

If one argues that the allegations in the articles of impeachment are not constitutional violations, then that is a traditional question of law. Witnesses are not necessary because the factual allegations are accepted as true for the purpose of the motion. The suggestion by those arguing for witnesses was that a motion to dismiss based on defective impeachment articles is a merits matter which requires witnesses.

Those arguing for witnesses cite no law or precedent for their novel claim. Article III courts dismiss on 12(b)(6) and summary judgment grounds all the time. And do so absent witnesses heard in open court. Everyone knows this.

I am not saying that Senators in the exercise of their judgment and discretion are bound to analogize their position to judicial procedure from courts of record—including federal courts.

What I am saying is that those arguing that once you get past jurisdiction (per Blount), the House managers are entitled to live witnesses as a matter of right is a very strange claim, unsupported by authority, and contrary to the nearest procedural analogues from courts of record.

Those arguing for witnesses next fall back ... was “OK, so the Senate, as a matter of law, could reject having witnesses, but so what?—in the vast majority of prior Senate impeachment trials the Senate heard witnesses, so why not do so here?

One can only cry when hearing law professors launch such an argument. Say a new federal judge reaches the bench. He hears 15 civil cases, and they all survive motions to dismiss and motions for summary judgment. In each of these 15 cases there are witnesses and a jury decision. Now you come into court before that judge representing a new claimant in this judge’s 16th case. Can you argue—“your honor, my claim survived 12(b)(1) challenges . . . so let’s skip a decision on the defendant’s 12(b)(6) arguments and any opportunity for summary judgment . . . why . . . because in all your prior 15 cases you heard from live witnesses in open court.” The judge will simply say that your argument is not a valid argument. In other words, those cases under the rules were strong enough to survive challenges at the initial stage and so those plaintiffs were entitled to witnesses. But for you to get witnesses in your case, you must survive initial challenges to your claim. Every case is assessed individually under the rules.

The fact that most pre-Trump impeachments had witnesses is a way of saying the Senate agreed that the House did its job. Whether the House did its job in the Trump proceedings is a matter for this Senate on the facts presented. You cannot decide that by tabulating prior cases. Everyone knows this.

Yet, here, we see a concerted effort to make an entirely new system of justice for one person. Trump. And the effort failed. And if you want evidence of what I have written here . . . just look at the misrepresentations about Blount, the fake chart, and the unwillingness of those who erred to concede error.

Seth Barrett Tillman, Tabulating Cases For and Against the President, New Reform Club (Feb. 3, 2020, 10:39 AM), <>; 

PS: You can see the bad chart--thee one failing to list all Senate impeachment trials, including Blount--here: <>. It was produced by Citizens for Responsibility and Ethics in Washington. Of course!