What Blackman and Tillman Wrote in March 2024

 

 

 

Special Counsel Smith’s actions taken to date in this case have been unlawful. However, his actions and those of his purported subordinates, may be salvageable by operation of the De Facto Officer Doctrine. Nguyen v. United States explained that the “de facto officer doctrine ... confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” Nguyen v. United States, 539 U.S. 69, 77 (2003) (quoting Ryder v. United States, 515 U.S. 177, 180 (1995)). The cases cited in Nguyen and Ryder concerned challenges to purported “officers of the United States”—all federal judges—whose appointments under the Appointments Clause were in some way defective. See also Griffin’s Case, 11 F. Cas. 7 (C.C.D. Va. 1869) (No. 5815) (Chase, Circuit Justice) (discussing De Facto Officer Doctrine as applied to a state court judge purportedly disqualified under Section 3 of the Fourteenth Amendment in the context of a collateral challenge). Admittedly, it is not entirely clear whether the De Facto Officer Doctrine applies to the facts and circumstances at hand involving a federal prosecutor.

Amici take no position on whether Jack Smith’s work to date can be salvageable by operation of the De Facto Officer Doctrine. That said: as a general matter, the focus of the De Facto Officer Doctrine insulates retrospective conduct, as opposed to prospective conduct. After there is a final judgment declaring that the (purported) Special Counsel is acting beyond his lawful authority, the government may be estopped from seeking to insulate, under the De Facto Officer Doctrine, further unlawful actions taken after an adverse final judgment against the Special Counsel.

Going forward, these Appointment Clause issues can be obviated only if this prosecution proceeds in the regular course under the supervision of the duly-nominated, confirmed, and appointed United States Attorney for the Southern District of Florida. There is no question that such a prosecution would be valid under the Supreme Court’s Appointments Clause jurisprudence. (Other constitutional defenses, such as presidential immunity, remain to be adjudicated.) Perhaps more importantly, prosecuting the Defendant under the auspices of the normal processes involving Department of Justice oversight would bring political accountability to this case.

Whether this prosecution will proceed in the normal course is a policy judgment for the Attorney General and the Department of Justice. It is not a decision this Court needs to reach in deciding Defendant’s motion. 

Extract from: Brief of Professor Seth Barrett Tillman and Landmark Legal Foundation as Amici Curiae in Support of Defendant Trump’s Motion to Dismiss the Indictment, United States v. Trump, Case No. 9:23-cr-80101-AMC-BER (S.D. Fla. Mar. 21, 2024) (filed by Professor Josh Blackman & Michael Adam Sasso, Esq.), ECF No. 410, 2024 WL 1214430, <https://ssrn.com/abstract=4755563>, <https://tinyurl.com/3kju33w4>.

Seth Barrett Tillman, ‘What Blackman and Tillman Wrote in March 2024,’ New Reform Club (Nov. 4, 2025, 4:40 AM), <https://reformclub.blogspot.com/2025/11/what-blackman-and-tillman-wrote-in.html>;

What I Wrote in 2014

 

 

Cassady takes the position that the [Constitution’s] disqualification penalty bars disqualified former Presidents, Vice Presidents, and officers of the United States from subsequent election or re-election to the presidency and vice presidency. In this Article, I take the contrary position: disqualified former Presidents, Vice Presidents, and officers of the United States are not barred from any constitutionally mandated elected positions, state or federal. Rather, disqualified former Presidents, Vice Presidents, and officers of the United States are precluded from holding federal appointed or statutory offices.

Given the infrequency by which the Senate [in impeachment proceedings] invokes the disqualification penalty, one might very well ask: “Why is this issue important?” The answer, primarily, is for two reasons. First, just because disqualification has been rare in the past does not mean that it might not become more widely used in changed future circumstances. One thing we know about the future (if only from past futures) is that it might be very different from what we have lived and from what we currently expect. Because the effect of disqualification on candidates and voters is (ostensibly) permanent and (according to Cassady and others) profound, in regard to limiting their participatory and voting rights, we all might be better off having a frank discussion now, while we are behind a common Rawlsian veil of ignorance, before the effects of partisanship and the demands for speed under the pressure of litigation blind us from the permanent interests of our political community.

Second, the Disqualification Clause’s “Office . . . under the United States” language and very similar language appear within many other provisions of the Constitution. So, if our originalist investigation teaches us the scope of the Disqualification Clause’s specific “Office . . . under the United States” language, what we learn will (or, at least, may) have much to say regarding any number of other constitutional provisions (using that language). Our investigation is likely to have a global or intratextual impact across our understanding of the Constitution as a whole. In other words, we can use the Disqualification Clause as a wedge to pry open a door to constitutional meaning and meanings. The combined stakes here are reasonably high.

From: Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33(1) Quinnipiac L. Rev. 59 (2014), <ssrn.com/abstract=2484377>.

 

Seth Barrett Tillman, ‘What I Wrote in 2014,’ New Reform Club (Nov. 4, 2025, 4:22 AM), <https://reformclub.blogspot.com/2025/11/what-i-wrote-in-2014.html>;