A Letter to Politico

 

re: Karl Racine, Brian Frosh, and Norman Eisen, We Sued Trump for Emoluments Violations. That Fight's Just Getting Started, Politico (February 8, 2021, 04:30 AM EST), <https://www.politico.com/news/magazine/2021/02/08/donald-trump-emoluments-presidential-corruption-466484> 

The most significant claim made in Karl Racine, Brian Frosh, and Norman Eisen's article is now hopelessly out of date. And your readers should be made aware of this. Their article repeatedly states that Judge Messitte's trial court decisions, for the United States District Court for the District of Maryland, established the "law of the case" in regard to the Foreign Emoluments Clause, and that Judge Messitte's decisions are "still in force." Those trial court decisions were implicitly set aside by the Supreme Court on January 25, 2021, and they were expressly vacated by the Fourth Circuit on March 9, 2021. It is all there in black-and-white in the Fourth Circuit's order. See Order, App. No. 20-1839, 2021 U.S. App. LEXIS 6888, 2021 WL 913925 (4th Cir. Mar. 9, 2021), ECF No. 28 (4th Cir.), ECF No. 196 (D. Md.). On March 17, 2021, lawyers for Frosh, the Attorney General of Maryland, and for Racine, the Attorney General of the District of Columbia, sent a letter to the clerk of the Fourth Circuit seeking "guidance" in regard to the court's March 9 order. The clerk of the Fourth Circuit responded on March 25, 2021. The clerk's response, without any equivocation, stated: "[T]he [C]ourt [of Appeals] has asked me to advise you that the court has received your correspondence and that the orders entered March 9, 2021, will remain as written.”

After nearly 4 years of their repeated dilatory conduct over the course of this case, the two Attorneys General have nothing to show for their titanic waste of government and private resources, including federal judicial resources--all done for raw political purposes. They accomplished nothing. They never succeeded in getting a final judgement against former President Trump. They never succeeded even in getting any discovery against the former president. 

Interestingly, the Attorneys General brought two claims against former President Trump: an "official capacity" claim and an "individual capacity" claim. The former was moot once Trump was out of office. But the status of the latter claim was unclear. For reasons they have never explained the Attorneys General dropped both claims. They could have continued to litigate the individual capacity claim, but they chose not to do so. And, now, after nearly 4 years of litigation, they have nothing to show their fellow citizens, voters, and taxpayers for all the money, effort, and resources their offices used in this litigation. Their article in 'Politico' argued that their victory was establishing the law of the case as a precedent for future use. But ALL the binding appellate precedent has been vacated. And ALL the District Court decisions--which are only persuasive precedent--were expressly vacated on March 9, 2021. If this counts as victory, what would be defeat? 

The two Attorneys General achieved nothing substantive. What they did achieve relates only to photo opportunities and political fund raising. They occupied the time of four courts and, in doing so, delayed the meritorious litigation of countless citizens and taxpayers while they went after their great white whale: former President Trump. But the fact is: Attorney General Frosh and Attorney General Racine should have taken a lesson from Captain Ahab.

Seth

Seth Barrett Tillman, A Letter to Politico, New Reform Club (Mar. 26, 2021, 10:05 AM), <https://reformclub.blogspot.com/2021/03/a-letter-to-politico.html>; 

The Future of U.S. News and World Report’s Law School Rankings: A Letter from A Friend (UPDATE)

 

I would definitely recommend that you include your HeinOnline ScholarRank [in your materials]…. [T]he most important thing to know is that each faculty member’s ScholarRank score is like golf. The lower the better. Cass Sunstein is currently at the top with a ScholarRank of #1. The ScholarRank scores go as high as #45,000.

Your ScholarRank score is #4492 …. You’ve been cited 238 times [in the last 12 months] in HeinOnline journals….

And the ScholarRank score is about to become the single most important metric in American legal academia. Starting next year, 40% of each American law school’s U.S. News [and World Report] ranking will be based on HeinOnline’s cumulative ScholarRank of the school’s faculty (which apparently will consist of the combined faculty score divided by the number of tenured and tenure-track faculty). It’s going to have a huge impact on our field. Interestingly, however, most law school faculty (at least in my neck of the woods) seem unaware of ScholarRank.

Interestingly, 20% of the ScholarRank score is based on HeinOnline downloads in the past 12 months. Accordingly, I think ScholarRank is going to kill SSRN, at least as a platform for legal scholarship. People are soon going to realize that posting on SSRN is counterproductive because SSRN downloads don’t count toward a scholar’s ScholarRank score, whereas HeinOnline downloads directly factor into your ScholarRank score.

Seth Barrett Tillman, The Future of U.S. News and Wold Report’s Law School Rankings: A Letter from A Friend (UPDATE), New Reform Club (Mar. 22, 2021, 9:44 AM), <https://reformclub.blogspot.com/2021/03/the-future-of-us-news-and-wold-reports.html>; 

UPDATE: Paul Caron, at Tax Prof Blog, was in contact with U.S. News & World Report. His correspondence indicates that my information above is not correct. 

Footnote From my Next Paper

 “Y Dyn Na Fu Erioed,” in Aberbargoed, Borough of Caerphilly, Wales, United Kingdom War Memorial, <https://tinyurl.com/43z4ym3a>. See generally Ewen Montagu, C.B.E., K.C., The Man Who Never Was (Philadelphia, Penn.: Lippincott, 1954) (publicizing the details of Operation Mincemeat: including the story of Glyndwr Michael, who posthumously served as Major William Martin, RM); Ronald Neame, director, The Man Who Never Was (Sumar Productions, 1956); Operation Mincemeat Documentary, Youtube, <https://tinyurl.com/5kxb39bn>. Montagu was elected president of the Anglo-Jewish Association in 1949, and he became president of the United Synagogue in 1954. Year Book of the Anglo-Jewish Association 1951, 5711/5712 (London: Office of the Anglo-Jewish Association, n.d.), 93-94; “VE Day 8 May 1945 Commemorations,” Gazette 2020/Wadham College, University of Oxford, 53, 55, <https://tinyurl.com/y6pf62tf>. After the war, Montagu served as Judge Advocate of the Fleet, recorder, and judge. See R v Long, Queen’s Bench [1960] 1 (Court of Criminal Appeal 1959) 681, 682 (Lord Parker, CJ) (reporting Montagu as recorder during trial proceedings in Southampton Borough Quarter Sessions); Lord David Hacking, “From Cambridge into the Law and the World of Arbitration,” Arbitration 82(3) (2016): 281, 286 (noting that Ewen Montagu was the presiding judge at Middlesex Quarter Sessions in Parliament Square, and “to us at the Bar, [Montagu] was ‘The Judge who Bloody Well Is’.”); “Hon. Ewen Edward Samuel Samuel-Montagu,” The Peerage, <http://www.thepeerage.com/p58982.htm>.

Seth Barrett Tillman, Footnote From my Next Paper, New Reform Club (Mar. 8, 2021, 7:42 PM), <https://reformclub.blogspot.com/2021/03/footnote-from-my-next-paper.html>;