Ruminations on Judge Boasberg’s Choices

 

Ruminations on Judge Boasberg’s Choices:

Holding Litigants in Contempt in the Context of Emergency Orders

 

          The Supreme Court has stayed Judge Boasberg’s orders. It appears a contempt citation running against the government or its counsel (the Department of Justice) or both is off the table—at least for now. But the procedural issues that arose in Boasberg’s case and several other recent cases against the Trump-47 administration are likely to arise again. Here, I want to clarify how federal courts and the wider public should understand contempt citations arising in the context of emergency litigation.

          In what might be called “normal” litigation, two parties are before the trial court. The plaintiff in civil litigation or the prosecutor in criminal litigation has dragooned a defendant before the court. The two parties are adversarial. The judge (with or without a jury) hears from a full set of live witnesses (from each party) subject to cross-examination under the rules of evidence. Such evidentiary rules exclude hearsay at the request of a party. In short, both parties are before the court—each has had notice and an opportunity to be heard. When the court issues its final order, both parties are bound. A party who violates such an order will face stiff sanctions, including contempt. A party seeking to escape the burdens of such an order has only a few paths forward: seek reconsideration from the trial court, appeal to a higher court, or seek a legislative change before the time for reconsideration and appeal has run out. (A daring litigant might also try a collateral attack based on the absence of jurisdiction.) 

          Prior to full trial on the merits, a plaintiff might also seek a preliminary or interlocutory injunction. The posture of the case is in some ways the same and in some ways different from “normal” litigation described above. There is a plaintiff who has dragooned a defendant before the court. That is the same. The two parties are adversarial. That is the same too. Where such preliminary relief is sought, the judge will hear the proceeding, but there will not be a jury. There will be no trial with both sides putting on a full set of live witnesses and such witnesses being subject to cross-examination. Indeed, there may be no witnesses at all. Rather, each side is likely to support its position only with sworn affidavits—that is hearsay. To put it another way, the very hearsay “evidence” that is regularly excluded during “normal” litigation is the evidence (and sometimes the only evidence) the courts regularly rely upon in determining whether to grant or deny a preliminary injunction. Indeed, that is one reason that there is no jury in such proceedings. The evidence, such as it is, is subject to abuse, exaggeration, and bias precisely because the affidavit’s declarant knows he will not be made subject to cross-examination. Likewise, it is hoped that a judge, being a repeat player unlike random and occasional jurors, will be more likely to see through such trickery in drafting affidavits.

          Given that the evidence at this stage is arguably unreliable, you might ask why grant preliminary relief at all? The traditional answer is that a defendant’s alleged wrongful conduct might be so transformative of the facts on the ground, that if the court waits to make its determination only after full trial on the merits, with a full set of witnesses on both sides and subject to cross-examination, then by that time, no adequate relief may be possible. Indeed, no relief may be possible. And plaintiffs should not be left absent a remedy when their legal rights are being invaded, particularly when the harm suffered is such that they cannot be compensated for that harm after full trial on the merits. At least, that’s the rationale.

          In both the “normal” full trial on the merits, with live witnesses subject to cross-examination, and a preliminary injunction proceeding—both parties are before the trial court, and both parties have had notice and an opportunity to be heard. Here too, at the preliminary injunction stage, parties are expected to comply with the court’s decision to grant or deny injunctive relief. A noncompliant party will be subject to sanctions, including contempt.

          Finally, even prior to seeking a preliminary injunction, a plaintiff might seek emergency relief—an injunction for just 1 or 2 days, or even a for a few hours. This injunction, if granted, would last until a coordinate hearing is heard for a preliminary injunction. And if not granted, the plaintiff might still seek a preliminary injunction. Such an injunction is sometimes called a temporary restraining order (“TRO”) or interim injunction. The legal standard for granting a TRO is basically the same standard used in the context of a preliminary injunction hearing. But not all TROs are alike. Some TROs are heard ex parte (where the other party is not present), and some are heard ex parte and in chambers (where the public is excluded). See, e.g., Anton Piller KG v Manufacturing Processes Ltd (Denning MR and Omrod LJ) (hearing the proceeding, on appeal, ex parte and in-chambers).

          Why might the defendant be absent? There are a variety of possibilities. The defendant could not be found. The defendant could be found, but he only received service of process a very short time prior to the hearing—so, he physically could not reach the court in time for the hearing. Or he could reach the court, but he has had no time to find a lawyer or to consult with his lawyer about a defense against the TRO. (This was the position General Cadawalader was put in, in Ex parte Merryman, when on less than one-day’s notice Chief Justice Taney expected Cadwalader to find an attorney and put forward a defense for the army’s conduct during the U.S. Civil War.) Or, where the DOJ is the attorney—the DOJ might not have had time to consult an agency client (if an agency is the client) or the President (if the President is a defendant). In either event, the defendant may be absent from the hearing or even if present, he has not had a meaningful opportunity to put a defense forward. Imagine finding yourself surprised one day confronted with the news that an emergency order has been issued against you and you had no notice and no opportunity to be heard. Is that really something a defendant must obey?

The law here is somewhat murky.

On the one hand, if the court has jurisdiction (to hear this type of dispute and jurisdiction over the defendant), then some courts and commentators say the answer is “yes.” Parties must obey courts, and judges expect to be obeyed. If the order is ex parte, that is just another type of court order, and a defendant’s disobedience risks sanctions, including contempt.

But not all courts and commentators agree. Some take the view that obedience to court orders is generally predicated on fair play and due process: that is, notice and an opportunity to be heard. As such, a defendant can risk disobedience to an ex parte court order. If the defendant persuades the court (in subsequent proceedings, reconsideration, or on appeal) that the ex parte TRO should not have been issued in the first place, then the defendant should not have had to comply with the order and should not face sanctions for disobedience to it while it was in effect. 

Again the law here is unclear. Compare, e.g., Hallmark Cards Inc. v Image Arts Ltd (Buckley LJ) (holding that where an ex parte order is set aside, the defendant should not be held in contempt for prior noncompliance while the order was in effect), with Wardle Fabrics Ltd v Myristis Ltd (Goulding J) (disobedience to an ex parte order amounts to contempt even if the order is later set aside). One prominent commentator, Professor Hilary Biehler, has taken the position that where an ex parte order is subsequently set aside courts should be “slow to impose penalties … in view of the potential for abuse”. Interestingly Biehler does not clarify if the abuse will arise in connection with underhanded or reckless conduct by the applicant seeking the TRO or from judges’ officiously seeking to punish defendants with meritorious positions, but not in technical compliance with ex parte courts orders which were subsequently set aside. See Biehler, Equity and the Law of Trusts in Ireland 777 (7th ed. 2020) (commenting on English and Irish case law).

If the DOJ refused to abide by a federal trial court judge’s order, and that order was granted ex parte, but subsequently it was set aside, then what should the judge do? My view is that holding the prevailing party in contempt should not be predicated on mere disobedience standing alone. Contempt’s normative justification is tied to fair play and due process, but where the process is ex parte, contempt is too harsh. What is driving the public mind (or part thereof) to press for contempt in the recent immigration cases is that a large part of the public believes the Trump-47 policies are lawless or heartless or both. But if the policies are lawless, that’s a merits determination. If the order was set aside on appeal, then the merits standing alone should not be sufficient cause to elicit a contempt order. As for heartless, I am sure that the majority of federal judges thinks that too. But that is a policy and values judgement—we hold elections to make those decisions—we do not issue contempt citations for being on the wrong side of a naked moral judgment untethered to established law.

          Where an ex parte TRO is set aside, I think a federal trial court judge has a narrow window of opportunity to hold a disobedient defendant in contempt. The judge must establish that the defendant’s conduct during and in the course of the litigation was illegal or inequitable. Here I am speaking not to the litigant’s underlying or out-of-court conduct, but his conduct in relation to his representation before the trial court. The conduct would have to be something akin to perjury, fraud, or unclean hands (albeit, that doctrine usually applies to plaintiffs’ seeking equitable relief, as opposed to defendants’ opposing an application for equitable relief).

          To put it another way, when a trial court’s ex parte TRO is on its way up through the court system on appeal, a judge should refrain from discussing contempt, in full public view, for noncompliance during that time. After the appellate process is over, then that’s the time to consider a contempt citation, and it should be done in full public view. Otherwise, the judge will look vicious, officious, and biased. And that cannot be right.

 

Seth Barrett Tillman, ‘Ruminations on Judge Boasberg’s Choices,’ New Reform Club (Apr. 11, 2025, 10:58 AM), <https://reformclub.blogspot.com/2025/04/ruminations-on-judge-boasbergs-choices.html>; 

Professor Tribe Misunderstands the Legal History of Japanese Internment

 

Letter to the Editor

The Guardian

guardian.letters@theguardian.com

 

 

25 March 2025

 

 

Seth Barrett Tillman, Associate Professor

Maynooth University School of Law and Criminology

Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad

NewHouse—#53

Maynooth University

Maynooth

County Kildare

Ireland W23 F2H6

(academic title & affiliation for identification purposes only)

 

RE: Laurence H Tribe, ‘Donald Trump is seeking to erase the United States as we know it,’ The Guardian (24 March 2025, 23:06 CET), <https://www.theguardian.com/commentisfree/2025/mar/24/trump-us-constitution>.

 

Professor Tribe wrote: “Trump invoked a 1798 statute [that is, the Alien Enemy Act] last used to intern Japanese Americans during the second world war . . . .” Professor Tribe’s statement is not correct.

President Roosevelt invoked the Alien Enemy Act to intern Japanese citizens, and not U.S. citizens, resident in the United States, who were not dual nationals. Roosevelt did intern U.S. citizens of Japanese descent. His legal vehicle for doing the latter was Executive Order #9066, which relied on the inherent powers of the presidency under Article II of the Constitution, the President’s powers as commander-in-chief, and the declared war between the United States and Japan. Contra Professor Tribe, Roosevelt’s decision to intern U.S. citizens of Japanese descent and Executive Order #9066 did not rely on the Alien Enemy Act of 1798.

In his March 24, 2025 federal trial court decision, Chief Judge James E. Boasberg explained: “During World War II, President Roosevelt used the [Alien Enemy] Act, variously, to apprehend, intern, and remove Japanese, Germans, and Italians residing within the United States.” (slip opinion at page 5 (emphasis added).) Those interned under the 1798 statute were foreigners, and citizens of nations at war with the United States; the internees were neither U.S. citizens nor dual nationals. Indeed, Section 1 of the 1798 statute expressly exempts dual nationals from the scope of the Act.

Is mise, le meas,

/s/

Seth Barrett Tillman

Seth Barrett Tillman, Letter Submitted to The Guardian, ‘Professor Tribe Misunderstands the Legal History of Japanese Internment,’ New Reform Club (Mar. 25, 2025, 7:25 AM), <https://reformclub.blogspot.com/2025/03/professor-tribe-and-alien-enemy-act-1798.html>; 

A Letter to the New York Times: A Response to Professor Shaw

 

Seth Barrett Tillman, Associate Professor

Maynooth University School of Law and Criminology

Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad

New House—#53

Maynooth University

Maynooth

County Kildare

Ireland W23 F2H6

(academic title & affiliation for identification purposes only)

7 March 2025

 

Letters Editor

New York Times

 

RE: Professor Katherine Shaw, ‘There Is No Musk Exception in the Constitution,’ New York Times (4 March 2025).

 

Is Elon Musk an “officer of the United States” who President Trump must appoint via the Constitution’s Appointments Clause? Professor Shaw answers “yes.” She explains:

Mr. Musk appears to be wielding significant power, as evidenced by his presence at the administration’s first cabinet meeting last week. He was the first to speak after the president’s introduction. He boasted about pushing federal employees to respond to an email about their work, inveighed about the federal deficit and casually disclosed that his team had inadvertently canceled funding for Ebola prevention—an error he claims was quickly rectified, but may not have been. The email he mentioned appears to have been dashed off without advance warning even to the cabinet. (emphases added by Tillman)

Shaw indicated that the test for being an “officer of the United States” is that the purported officer exercises “significant power.” That is entirely wrong. As the Supreme Court explained in Buckley v. Valeo (1976), the test is that the purported officer exercises “significant authority” which binds the United States as a legal matter. There is a world of difference between Shaw’s position and the Supreme Court’s. Spouses (like Jill Biden, like Hillary Clinton) and White House confidants frequently exercise very real power through giving advice and recommendations to the President (or to cabinet members), but such advisors do not wield or purport to wield legal “authority.”

 

As to the other evidence Shaw puts forward—she speaks to where Musk was “presen[t],” who he “speak[s]” to, who and what he criticizes or “inveigh[s]” against. Not one thing on this list of Musk’s purported “significant powers” is remotely close to what the Supreme Court has determined to be unlawful when exercised by a nonofficer. And even if it were, the most that Shaw can muster is that it “appears” that Musk has acted unlawfully. Her best example is that Musk’s “team,” as opposed to Musk himself, purportedly canceled a contract on behalf of the U.S. government. But that might mean no more than Musk recommended that course of conduct and that the responsible secretary, under-secretary, or high level civil servant acted on Musk’s advice (which was only relied upon at the direction of the President). In those circumstances, Musk will have tendered a recommendation, not a final decision binding the government. That’s not enough—not nearly enough—to make him an “officer of the United States.”

 

Elected officials, indeed especially elected officials, get to speak and to hear others speak. Such freedom of thought, speech, and association is crucial to any common understanding of American democratic self-government. A not insignificant number of our citizens believe that First Amendment norms are under attack. I am sure it was inadvertent, but I have little doubt that Shaw’s editorial will only confirm their concerns and fears.

Seth Barrett Tillman

 

Seth Barrett Tillman, ‘A Letter to the New York Times: A Response to Professor Shaw,’ New York Times (posted: 7 March 2025, 11:09 AM), <https://reformclub.blogspot.com/2025/03/a-letter-to-new-york-times-response-to.html>; 

Some Proposed Reforms for the Legal System

 

 

1.    My forever war against current Blue Book practice.

When a judicial or administrative decision is cited, a parenthetical should identify the judge/justice/administrative-law-judge who authored the opinion (or indicate it was decided per curiam, etc).

2.    Blue Book (II).

Where a court has multiple members, editors should freely let authors indicate who joined the primary author. Instead, editors at student-edited and peer reviewed journals fight such practices at every step.

3.    Reporters.

Reporters of U.S. decisions should follow the better foreign practice. A report of a decision should indicate, in the margin, proceeding down the page, which judges/Justices joined each segment of an opinion.

4.   The Supreme Court of the United States. 

The office of the Clerk of the United States Supreme Court should follow the CM/ECF practice of every other federal court in the United States. When a filing is posted on the Court’s website, it should be stamped with the date-&-time which it was received/uploaded, and also given a unique docket number to ease referencing by third parties.

5.    Ex parte Merryman (1861).

Finally, journals should entirely refrain from citing Ex parte Merryman (1861) as a decision of the U.S. Supreme Court, or of the federal Circuit Court for the District of Maryland, or of the federal Court of Appeals for the Fourth Circuit, or of the federal District Court for the District of Maryland, or of the Supreme Court of Maryland (or any other Maryland state court). 

Merryman was simply a decision of Taney, C.J. in chambers. See Ex Parte Merryman, 17 F. Cas. 144 (1861) (No. 9487) (Taney, C.J., in chambers); 4 (pt. 1) A Collection of In Chambers Opinions by the Justices of the Supreme Court of the United States 1400–12 (Cynthia Rapp & Ross E. Davies, comps., 2004) (reporting Merryman), http://tinyurl.com/judtw8q. 

Seth Barrett Tillman, ‘Some Proposed Reforms for the Legal System,’ New Reform Club (Mar. 7, 2025, 4:53 AM), <https://reformclub.blogspot.com/2025/03/some-proposed-reforms-for-legal-system.html>; 

Lawfare Is Wrong, And Submitting Complaints About Judges Because Of Hurt Feelings Is Wrong Too

 

 

Judge Reyes is a judge on the United States District Court for the District of Columbia. Apparently, Reyes is human and makes mistakes, and from time to time, she says odd things while on the bench. Apparently, some lawyers feel wounded by her hurty words. Indeed, the U.S. Department of Justice has filed a complaint with the circuit’s Chief Judge. For background to this imbroglio, see: Josh Blackman, Did Judge Reyes Impose An Unconstitutional Religious Test?, Volokh Conspiracy (Feb. 23, 2025, 9:16 PM), <https://reason.com/volokh/2025/02/23/did-judge-reyes-impose-an-unconstitutional-religious-test/>.

Apparently, Reyes threatened to sanction Seth Waxman, a former Solicitor General, in regard to his representation of clients seeking relief against Trump’s orders removing several inspectors general. In separate litigation, Reyes had some questions directed towards a DOJ attorney who was defending Trump’s Executive Order involving persons in the military with gender dysphoria. Apparently, Reyes framed questions in terms of “What do you think Jesus would say” and “WTF.”

I think Reyes’ “WWJD” query is rather tepid. It could have been understood in the Judge’s mind, in the attorneys’ minds, and in the public mind in a number of different ways. I really doubt that the attorney in the courtroom struggled with this query. All the attorney had to say: “That’s a question our office had not been asked before, has not been addressed by this or other federal courts, and we think our attempting to answer would not accord with the interests of justice and with the example set by higher courts.”

I don’t think Reyes’ “WWJD” query is a First Amendment violation, much less a Religious Test Clause violation. Reyes made some people feel uncomfortable. Big deal: all questions do that. That is what they are supposed to do. Here the subject merely implicates religion. When we can, without giving up our principles and genuinely held beliefs, we should assume good faith and regularity by others, including federal judges appointed by the “other” party. When we can, without giving up our principles and genuinely held beliefs, we should make efforts to lower the political and judicial temperature. We should not engineer or suggest constitutional, judicial, or (other) ethical violations when there are none. The latter is just lawfare.

As to Reyes’ saying “WTF”—this is a trial court judge. Having clerked for one trial court judge who was known for being “hot” and fair while on the bench, I would think this is (again) too tepid to warrant a complaint to the circuit’s Chief Judge. Given that Reyes pressed Waxman (as a private attorney representing left-of-center clients) in strong terms, one might conclude that Reyes treats all alike—which is another reason to ignore (as a disciplinary matter), this judge’s harsh words directed at the Department of Justice attorney.

Finally, when a judge speaks his or her mind, that is transparency and a good thing. I have continually said much the same about Trump. The alternative is far worse. The alternative is that only the dim-witted and the slow-moving and the secretive will be on the bench. Having said all that, I will add that some judges’ conduct is wrongful, and that it is quite proper for aggrieved persons to use the several available processes to seek relief against actual judicial misconduct. I do not see any actual misconduct here.

 

Seth Barrett Tillman, Lawfare Is Wrong, And Submitting Complaints About Judges Because Of Hurt Feelings Is Wrong Too, New Reform Club (Feb. 24, 2025, 3:03 AM), <https://reformclub.blogspot.com/2025/02/lawfare-is-wrong-and-submitting.html>;

Are You Now Or Have You Ever Been A Federal Prosecutor?: A Response to Professor David G. Post

 

You can find Professor David G. Post’s Volokh Conspiracy post here: <https://reason.com/volokh/2025/02/17/more-on-the-outrageous-eric-adams-deal/>. Professor Post is critical of a prior blog post by Professor Josh Blackman for relying on a Tillman-authored 2022 article on Lawfare. Apparently, in his unaltered post, Professor Post characterized me as a “former prosecutor.” But I am not a current or former prosecutor. When his (Professor Post’s) error in reporting my biographical information was brought to his attention, Professor Post made a correction. Professor Post added that my (Tillman’s) not having been a prosecutor weakens the argument which I had put forward in my 2022 Lawfare article. Indeed, he affirms (in the comments above) that Professor Blackman’s reliance on my 2022 Lawfare article makes Blackman’s “argument . . . even more ridiculous” as I am “just a law prof[essor].”

As far as I know, Professor Post (like me) has never been a “former prosecutor.” On his publications, he lists his academic title: “Professor.” Oddly, Professor Post does not consider whether his not having been a former prosecutor weakens his argument. Why is that? 

Are standards only for people you disagree with? 

My own view is that whether or not, he (Professor Post) or I have been prosecutors, our arguments should be primarily judged on their merits. My article (unlike his Volokh Conspiracy post) was intensively reviewed by editors at Lawfare—many (if not most) of whom are former federal prosecutors. And Lawfare is hardly a playground for right-of-center voices, right? And my article has been cited and linked to. Has Professor Post’s Volokh Conspiracy post been cited?

For those of you who would like to review my 2022 Lawfare article, see Seth Barrett Tillman, Not a Panacea: Trump Disqualification and Plea Bargains, Lawfare: Hard National Security Choices (Sept. 20, 2022, 8:31 AM), <https://www.lawfaremedia.org/article/not-panacea-trump-disqualification-and-plea-bargains>, <http://ssrn.com/abstract=4194941>. 

Seth Barrett Tillman, Are You Now Or Have You Ever Been A Federal Prosecutor?: A Response to Professor David G. Post, New Reform Club (Feb. 19, 2025, 9:27 AM), <https://reformclub.blogspot.com/2025/02/are-you-now-or-have-you-ever-been.html>; 

I was promised a left-wing litigation Gotterdamerung ... and all I got was this lousy shirt

 

I had thought that shortly before, or on January 20, 2025—inauguration day, or within a short time thereafter, Democratic Party affiliated [i] progressive academics, [ii] think tanks, [iii] litigation shops, [iv] state attorneys general, and [v] other office holders . . . would bring lawsuits against Trump based on the Foreign Emoluments Clause and the Presidential (Domestic) Emoluments Clause.

It has been two weeks since Trump-47’s inauguration, and, as far as I know, not one such lawsuit has been filed.

I am surprised.

Moreover, I do not know why the President’s many well-resourced opponents have not gone down this path. After all, during Trump-45 they covered themselves with self-praise which a fawning media regularly regurgitated—even when they had very little substantive to show.

I could speculate on why we see the current inaction. And maybe one day, I will return to that issue and to speculate.

But right now, I think the bigger story is that the national press is not pressing these groups (i.e., the parties which had brought the Emoluments Clauses cases during Trump-45) for any rationale explaining their current inaction. And that tells you something about where our media is.

Seth Barrett Tillman, ‘I was promised a left-wing litigation Gotterdamerung ... and all I got was this lousy shirt,’ New Reform Club (Feb. 3, 2025, 2:44 AM), <https://reformclub.blogspot.com/2025/02/i-was-promised-left-wing-litigation.html>; 

Trump-47 Judicial Vacancies and Trump-47 Judicial Nominations (UPDATED)

At the start of Trump-47, on January 20, 2025, there were 45 federal judicial vacancies—all were Article III vacancies.

There are now 59 federal judicial vacancies, including, 58 Article III positions, one Article I position (USDC for the DISTRICT of the VIRGIN ISLANDS). 

There are 874 authorized Article III federal judicial positions, with 58 Article III vacancies, amounting to a 7% vacancy rate.

To date, Trump-47 has sent ZERO nominations to fill vacant federal judicial positions to the U.S. Senate.

                                    Mar. 21, 2025 vacancies              Mar. 21, 2025 Trump-47 nominations

US Supreme Court --                    0                                   0

US Federal Circuit Courts --        6                                    0

US Federal District Courts --     52                                    0

Article I Courts --                         1*                                  0

Total --                                        59                                    0

Vacancies include current and future vacancies as reported: current, <https://www.uscourts.gov/data-news/judicial-vacancies/current-judicial-vacancies>, and future <https://www.uscourts.gov/data-news/judicial-vacancies/future-judicial-vacancies>. 

Seth Barrett Tillman, ‘Trump-47 Judicial Vacancies and Trump-47 Judicial Nominations,’ New Reform Club (UPDATED: Apr. 16, 2025) (Jan. 29, 2025, 3:14 AM), <https://reformclub.blogspot.com/2025/01/trump-47-judicial-vacancies-and.html>; 

How My Most Recent Publication Ends

It is said that at the negotiations at Appomattox Courthouse—Lee and Grant were both frank and civil during the course of negotiating the surrender of Lee’s Army of Northern Virginia. Afterwards, Grant sent food to Lee to feed his (and, then, their) nation’s former enemy soldiers. Celebrations for Grant’s soldiers came only later—not while Lee’s soldiers remained present. Again, when the order of battle had ended, the first step towards national reconciliation was frank and civil discourse.

I do not think our present and future is or will be as difficult as was Grant and Lee’s. But we too have to think about national reconciliation. It seems to me that the first steps in that direction involve frank and civil discussion, absent hyperbole, and absent name calling. If federal and state judges and legal academics are not up to that task, then that is just another institutional and cultural problem crying out for reform. Likewise, our domestic law schools are supported by taxes, tuition, and donations. If universities and academics only further burden American society by casting aside our free speech traditions and actively engaging in just another front in our culture wars, then wider society might very well choose to withhold support. Perhaps this process has already begun? 

Seth Barrett Tillman, ‘How My Most Recent Publication Ends,’ New Reform Club (Jan. 28, 2025, 11:09 AM), <https://reformclub.blogspot.com/2025/01/how-my-most-recent-publication-ends.html>;

Musk and the Neurodivergent

 

Seth Barrett Tillman, ‘Musk and the Neurodivergent,’ New Reform Club (Jan. 23, 2025, 2:50 AM), <https://reformclub.blogspot.com/2025/01/musk-and-neurodivergent.html>; 

<https://x.com/SethBTillman/status/1882023749463244930>; 

Part II—Professor Shugerman (et al) vs. Professor Prakash (et al)

 

In my prior New Reform Club post, I wrote:

[Professor] Shugerman has taken the position that Prakash has seriously erred—i.e., that Prakash’s interpretations have been wrong all along, and that he (Shugerman) has demonstrated that wrongness, and that Prakash has refused to retract or to sufficiently respond. For this alleged wrong, Shugerman put forward:

If “originalism” is a serious academic enterprise, are there any consequences for originalist scholarship that repeatedly misused, misrepresented, or made false claims about the historical record?

…. Is there accountability for originalists who make false historical claims?

Jed Shugerman, The Misuse of Ratification-Era Documents by Unitary Executive Theorists, Mich. J. L. Reform (2025) (last revised on SSRN on Jan. 10, 2025) (manuscript at 25), <https://ssrn.com/abstract=5070241>; id. at 1 (same).

Now, a new version of Shugerman’s Michigan Journal of Legal Reform draft article has been posted on SSRN, with a January 21, 2025 date. In this version, on the very last page of his draft, Shugerman states:

 

*An earlier version of this essay asked an open-ended question: “If originalism is a serious academic enterprise, are there consequences for originalist scholarship that repeatedly misused, misrepresented, or made false claims about the historical record?” In listening to critics and feedback, I acknowledge it is premature to ask this question. [Shugerman, manuscript at page 24]

 

Who the critics were and what their feedback was is not stated.

 

As to Jed Handelsman Shugerman & Ors, Presidential Revisionism, Slate (July 17, 2017, 5:42 PM), <http://tinyurl.com/y7qaabr4>. I see no update to this publication at all. A cheeky person might ask:

If historical research is a serious academic enterprise … are there any consequences ….

But I am not so cheeky.

 

Seth Barrett Tillman, ‘Part II—Professor Shugerman (et al) vs. Professor Prakash (et al),’ New Reform Club (Jan. 21, 2025, 6:48 AM), <https://reformclub.blogspot.com/2025/01/part-iiprofessor-shugerman-et-al-vs.html>;

Seth Barrett Tillman, ‘Professor Shugerman (et al) vs. Professor Prakash (et al),’ New Reform Club (Jan. 17, 2025, 9:28 AM), <https://reformclub.blogspot.com/2025/01/professor-shugerman-et-al-vs-professor.html>;

They Say It Is 1933?

 

They say it is 1933.

If they believed what they have said, then …

 

[i] Have they bought a condominium, bungalow, or timeshare abroad?;

[ii] Have they moved SOME of their assets into non-U.S.-based financial instruments?;

[iii] Have they moved SOME of their assets abroad?;

[iv] Have they purchased any foreign currency (e.g., Swiss Francs, Euros, Canadian Dollars) for use in the coming emergency?;

[v] Have they prepared an easy to hide, store, and carry cache of travel and other important personal and family documents (e.g., passports, birth and marriage certificates, diplomas, evidence of bar and other professional memberships, a current vita, and vaccination and other medical records)?;

[vi] Have they physically moved abroad, permanently or temporarily (until the U.S. situation is clarified)?;

[vii] Have they maintained and sought to develop family and other personal, religious and charitable, and professional contacts abroad that could be helpful in an emergency?; 

[viii] Have they, at the very least, explored becoming dual citizens?;

[ix] Have they, at the very least, explored where they can visit and/or settle abroad, with what identification and travel documents, and, most importantly, how quickly they can escape the U.S. authorities (i.e., by air, sea, train, bus, or automobile)?; 

[x] And, importantly, have they, at the very least, explored where abroad they, and other family members, have a right to work or could obtain a work permit in short order?;

[xi] And—just one more—have they bought a gun, and started taking shooting lessons? 

If the answer to each and every question above is “no,” then they do not believe it is 1933. It is just all talk for political effect and costless virtue signaling for a particularly receptive audience. And the political effect and size of that receptive audience is declining. Likewise, if they continue to discuss the lawfulness or morality (in the sense of political obligation) of a U.S. military coup to stop their political opponents (i.e, Trump) ... and if they hold these discussions in public, e.g., on a listserv that is publicly accessible, then they do not believe it is 1933, and they do not believe that they are living in a fascist dictatorship.

PS: If they hold U.S. citizenship and they also already hold citizenship in a foreign country (that is, other than the U.S.), have they explored to whom by marriage, birth, or otherwise they can legally share or transmit that foreign citizenship to—or otherwise share the benefits and protections of such foreign citizenship? If the answer, is “no, they have not explored . . . ,” then . . . .

PPS: Have they made any efforts and encouraged family and friends to make some substantial efforts to learn a widely-spoken foreign language? If the answer, is “no, they have made no such efforts . . . ,” then . . . . 

Seth Barrett Tillman, ‘They Say It Is 1933?,’ New Reform Club (Jan. 20, 2025, 3:36 AM), <https://tinyurl.com/zv5c2vcd>;

 

Impeachable Offenses?

 

Is President BIDEN’s announcing that a proposed constitutional amendment is part of the actual Constitution when it has not been certified by those charged with doing so and announcing such contra his own Office of Legal Counsel’s advice, a lie? Is his announcement an impeachable offense?

If the Vice President and/or any federal statutory officers (e.g., members of the cabinet, etc) advised President BIDEN to take this course of action, does their advice subject them to impeachment, trial, conviction, removal, and/or disqualification?

If they are bar members, can they be sanctioned for offering negligent legal advice or for recklessly or knowingly giving advice to commit an illegal act?

Is this an opportunity for the U.S. House of Representatives to assert the controverted power of “late” impeachment—that is, impeaching a former federal (elected) official or former federal (appointed) officer? Or, must the House impeach BIDEN prior to the end of BIDEN’s term? And in regard to federal statutory officers, must the House impeach such officers while they remain in their position, but not afterwards?

If BIDEN actually believes that the proposed Equal Rights Amendment is part of the U.S. Constitution, should he not order the archivist to certify its ratification? Is BIDEN’s failure to order the archivist to certify the ERA and/or Biden’s failure to remove the archivist itself an impeachable offense for a failure to TAKE CARE that the law be faithfully executed? Take Care Clause, U.S. Const. Article II, Section 3.

 

Seth Barrett Tillman, ‘Impeachable Offenses?,’ New Reform Club (Jan. 19, 2025, 4:24 AM), <https://reformclub.blogspot.com/2025/01/impeachable-offenses.html>; 

Professor Shugerman (et al) vs. Professor Prakash (et al)

 

 

 

          If you ask me about whether or not the President has an implied constitutionally-granted power to remove high-level Executive Branch officers subject to his (the President’s) appointment power, my answer is basically that I do not have a dog in that fight. Last August, in response to an inquiry by e-mail, I responded: “I have always avoided taking any position on this issue: [the scope of presidential] removal [powers]. I think [any interpreter taking a position] is at the far edge of the construction zone . . . where policy is driving legal conclusions. I do not think [the question] answerable as an originalist matter.”

Contra Tillman, Professor Shugerman and Professor Prakash do have positions on this issue.

Shugerman believes the answer is: No, the President has no such power impliedly granted by the Constitution. And Prakash believes: Yes, the President does have such a power. For the reasons I elaborated above and others, I am not going to judge between these two views, and I am not going to judge between these two academics. At least, between Shugerman and Prakash, I can honestly say that I am unbiased: Shugerman and Prakash have offered something less than effusive praise for my publications—as they are entirely entitled to do.

          But now something has changed. The terms of this debate, indeed, of legal academic debate, are being changed. Prakash et al wrote a 2023 Harvard Law Review article. See Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756 (2023), <https://harvardlawreview.org/print/vol-136/the-executive-power-of-removal/>. Prakash made certain arguments in support of his position—he relied on certain documents, and he put forward his interpretation of those documents. Shugerman has taken the position that Prakash has seriously erred—i.e., that Prakash’s interpretations have been wrong all along, and that he (Shugerman) has demonstrated that wrongness, and that Prakash has refused to retract or to sufficiently respond. For this alleged wrong, Shugerman put forward:

If “originalism” is a serious academic enterprise, are there any consequences for originalist scholarship that repeatedly misused, misrepresented, or made false claims about the historical record?

…. Is there accountability for originalists who make false historical claims?

Jed Shugerman, The Misuse of Ratification-Era Documents by Unitary Executive Theorists, Mich. J. L. Reform (2025) (last revised on SSRN on Jan. 10, 2025) (manuscript at 25), <https://ssrn.com/abstract=5070241>; id. at 1 (same).

          Let’s assume that Shugerman is correct, and that Prakash is wrong.

What does Shugerman have in mind by way of “accountability” where Prakash remains unmoved and unwilling to voluntarily concede error? What would Shugerman have third parties do? Should third parties convene a tribunal or board of inquiry? Who would be the judges? Would the finders-of-fact be generalists off the street or specialist academics, and if so, in what field(s)?

Moreover, what punishments would the tribunal be empowered to impose?

Assuming lethal injection and a custodial sentence are out, does Shugerman want to see Prakash “removed” from his academic post?

Should Prakash be held in stocks and forced to read Gienapp and Rakove?

Or Should Prakash be denied access to his university’s library and interlibrary loan service?

Or—God forbid—should Prakash be asked to suffer the Amy Wax treatment—i.e., denied teaching duties involving impressionable 1Ls?

          Is the punishment to be shunning by on-campus peers, or to be denied a spot, by distant faculty, at some off-campus conference?

          What does Shugerman mean by “accountability”?

          I am a traditionalist. Let me suggest that we stick with the traditional norm for legal academics. What is the norm? When Academic-A publishes an article, then Academic-B can write a response. If people are persuaded by Academic-B’s publication, then Academic-A’s reputation will take a hit. And that is “accountability.” Likewise, Academic-A can reply to Academic-B’s response. And that’s “accountability” too. Critics can be critiqued. A university built on free inquiry allows third parties to judge among publications, responses, and replies (and sometimes sur-replies)—along with the absence of such responses and replies. An interlocutor is not owed a response. Where an interlocutor writes a response, the initial proponent can reply or he can stand on his original publication. But the interlocutor is not owed a reply.

          Now you might say: Seth—why do you think that is the norm? The answer is tu quoque. Let me explain:

          In 2017, as briefing began involving litigation against Trump-45 based on the Foreign Emoluments Clause the Domestic (Presidential) Emoluments Clause, Professor Shugerman wrote an article appearing on Slate. He wrote:

Ultimately, the central piece of documentary evidence for this emoluments argument is a manuscript version of a 1792 document by Secretary of the Treasury Alexander Hamilton. That document omitted President George Washington from a list of “Persons Holding Civil Offices or Employments Under the United States.” Yet the same document, when it was actually printed in official records of the early U.S. government, listed the president and vice president under the heading of “persons holding civil offices or employments under the United States.” In every subsequent report of the Treasury Department listing the employees and offices “under the United States”—from Treasury Secretary Hamilton himself and his successors—the president is included . . . .

Jed Handelsman Shugerman & Ors, Presidential Revisionism, Slate (July 17, 2017, 5:42 PM), <http://tinyurl.com/y7qaabr4> (emphases added). Leaving aside Shugerman’s claims about the 1792 document and its subsequent reproduction, here, Shugerman is saying that there were other Treasury Department circulars—that is, “every subsequent report”—listing offices “under the United States.” Shugerman has this language in quotation marks. But he fails to identify any such documents using office “under the United States”-language. I put Shugerman et al on notice of my concerns long ago.

          To date, roughly eight years later . . .

·      Shugerman has not published copies of the documents he claimed existed in his 2017 Slate publication—nor has he privately sent me copies; 

·   Shugerman has not published full bibliographic information identifying where these documents can be found—nor has he privately sent me this information; 

      and, 

·   Shugerman has not published links to these documents—nor has he privately sent me such links.

My own belief is that, in 2017, Shugerman erred, and that no such documents exist. But he has not responded, and he has not retracted. And that is within norms. Indeed, I suggest that it is the norm.

Shugerman does not owe Slate, its readers, or me a reply regarding my critique—then or now. Why Shugerman has not responded is difficult to say. Perhaps he adheres to his original claims, and he leaves it to third parties (such as me) to go out and find the documents he claims exist. Or, maybe, he thinks the issue unimportant, and that his basic argument stands, even if this lone set of document-related claims fails. Or, perhaps, he is just too busy.

And the same applies to Prakash. Prakash does not owe the world and Shugerman a reply just because Shugerman is 101% sure Prakash is wrong. A failure to reply simply means that Shugerman gets the last word, and people have to decide who has the better argument.

Even now, at this late date, Shugerman might reply to my critique. But if he does so now, that is, some eight years after the fact, that is a tell. Moreover, the Foreign Emoluments Clause and the Domestic (Presidential) Emoluments Clause are likely to be in the news again very soon. Perhaps as early as Monday, January 20, 2025, at noon. Given that Shugerman’s Slate article is likely to be cited in renewed scholarship and renewed briefing, there is good reason for him to consider addressing the difficulties which I have flagged in this blog post. But “good reason” does not amount to an academic duty or other moral obligation. After all, if you are the sort who will rely on an article in Slate, absent footnotes and links justifying ambitious documentary claims, that is on you. What I can say is that if Shugerman revises his position in light of my critique, and he does so some eight years after the fact, that leaves Prakash with some time to reassess his position in a similar fashion. After all, Shugerman was responding to a 2023 Prakash publication in Harvard Law Review—so that leaves Prakash with a good seven years to decide what to do.

          Fair is fair.

 

Seth Barrett Tillman, ‘Professor Shugerman (et al) vs. Professor Prakash (et al),’ New Reform Club (Jan. 17, 2025, 9:28 AM), <https://reformclub.blogspot.com/2025/01/professor-shugerman-et-al-vs-professor.html>;

Seth Barrett Tillman, ‘Part II—Professor Shugerman (et al) vs. Professor Prakash (et al),’ New Reform Club (Jan. 21, 2025, 6:48 AM), <https://reformclub.blogspot.com/2025/01/part-iiprofessor-shugerman-et-al-vs.html>;