Tillman on Plagiarism in the Trump Litigation Briefs

This is my answer to an inquiry about “plagiarism” in certain briefs ....

I don’t think Trump’s lawyers used the word “plagiarism”—which is an assertion of a wrong. I do think it is more likely than not that my co-authored Lawfare paper (and other publications) influenced thinking on both sides and pointed both sides to further useful authorities. (Indeed, I sent copies of my publications to lawyers on both sides—a man has got to eat!)

Bragg’s attorneys cited many primary authorities (which I also had cited), and they did not take personal credit for the ideas in their brief as (wholly) original to themselves. They just decided to cite those other authorities and not to cite Professor Josh Blackman, my co-author, and me. That’s something they are entirely entitled to do. See Seth Barrett Tillman, ‘Some Thoughts on Plagiarism, Plagiarists, Fools, and Legal Fools,’ New Reform Club (Apr. 6, 2016, 2:11 PM), <https://reformclub.blogspot.com/2016/04/some-thoughts-on-plagiarism-plagiarists.html>. See generally anything by Professor Brian L. Frye on plagiarism. I have written on the scope of the duty to give credit. See Tillman, ‘Some Thoughts,’ supra. And I don’t fault Bragg’s lawyers for citing others and not me. (Of course, I would have been delighted to have been cited by Bragg’s lawyers—as I am only human.)

I also don’t think Trump’s lawyers did anything wrong by flagging to the court that there were similarities between what was in Bragg’s brief and what was in my publications, and how those similarities could be explained. “Cribbed,” as used in Trump’s lawyers’ brief, might mean no more than copied, as opposed to wrongfully copied. Some level of copying, particularly standard views and well known positions—as my views are by now after exposure on Opening Arguments and Instapundit, is to be expected in legal briefs. So some copying and cribbing is not necessarily a wrong, particularly where statements about law are at issue, as opposed to statements about facts. Indeed, that distinction is one appellate courts regularly apply to trial courts. If a trial court copies a party’s brief’s analysis of law, a court of appeals IS NOT likely to fault the trial court, much less overturn its decision. But if a trial court copies a party’s brief’s analysis of contested facts, a court of appeals IS likely to fault the trial court, and may overturn the trial court’s decision, and just perhaps, it may direct the case be moved to another judge for a retrial.

Of course Professor Hasen may have a different view.

Seth

Seth Barrett Tillman, ‘Tillman on Plagiarism in the Trump Litigation Briefs,’ New Reform Club (June 16, 2023, 13:55 PM), <https://reformclub.blogspot.com/2023/06/tillman-on-plagiarism-in-trump.html>;

See also Josh Blackman, ‘Trump’s Lawyers Cite, And Disagree with Blackman & Tillman On Whether The President Is or Is Not An “Officer of the United States”,’ Reason–Volokh Conspiracy (June 16, 2023, 1:39 PM), <https://reason.com/volokh/2023/06/16/trumps-lawyers-cites-and-disagrees-with-blackman-tillman-on-whether-the-president-is-not-an-officer-of-the-united-states/>;

See generally [Former] President Donald J. Trump’s Memorandum of Law in Opposition to the People of the State of New York’s Motion for Remand at v, 2 & n.1, The People of the State of New York v. Donald J. Trump, Civ. A. No. 1:23-cv-03773-AKH (S.D.N.Y. June 15, 2023) (Hellerstein, J.) (citing multiple Tillman-authored and Blackman-Tillman-authored publications), Doc. No. 34, <https://storage.courtlistener.com/recap/gov.uscourts.nysd.598311/gov.uscourts.nysd.598311.34.0.pdf>;