In Today’s Trump-related E-mail

 

In today’s Trump-related e-mail contact:

As I recall, your core argument for why Amendment XIV, Section 3 didn’t apply to Trump was that the President of the United States was not an officer (of the government, I suppose). 

Today, in the New York Times, in an article about the possibility of moving Trump’s so-called hush-money case [from a state court] to [a] [f]ederal court, the writer mentions that Trump’s attorneys are arguing that it should be moved precisely BECAUSE POTUS is a “federal officer.” Here’s the quote: “They also asked him to evaluate whether the law allowed for someone in the president’s situation—a federal officer who was also a defendant—to seek removal to federal court after a trial had been held and a judgment entered.” Here’s the full article: <https://www.nytimes.com/2025/11/06/nyregion/trump-conviction-appeal.html?unlocked_article_code=1.z08.KKd2.oeFuGgfBbVad&smid=url-share>.

We all know Trump often seeks to have his cake and eat it, too, but doesn’t their argument contradict your argument? Whether POTUS is an officer or not should be a binary question with one answer.

Curious to hear your thinking.

My response:

Trump’s lawyers are entitled to make arguments, including arguments about “office” and “officer,” unless those arguments are barred by offensive collateral estoppel and judicial estoppel (as controlled by federal precedent). He is not so barred at this juncture. The reason he is not so barred is that in the Amendment XIV, Section 3 cases the “office”- and “officer”-language was in Section 3, and here in regard to the removal issue, the “officer”-language is in a federal statute. So Trump is not making contradictory arguments. Albeit the two positions are related, but they are not the same. What you call “hav[ing] his cake and eat[ing] it too” is just standard, responsible lawyering—the sort any client would want and is entitled to get. I give Trump’s lawyers a lot of credit—they managed to cite my materials and say I was wrong in a respectful way—without name calling, etc.

See Seth Barrett Tillman, ‘Not Quite Schrödinger’s Cat—At least not yet,’ New Reform Club (Nov. 7, 2025, 2:35 AM), <https://reformclub.blogspot.com/2025/11/not-quite-schrodingers-catat-least-not.html>;

[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, 2023 WL 4046483 (S.D.N.Y. June 15, 2023) (Hellerstein, J.) (citing, and objecting to multiple Tillman-authored and Tillman-co-authored publications) (filed by Todd Blanche, Esq. & Susan Necheles, Esq.), Doc. No. 34, <https://storage.courtlistener.com/recap/gov.uscourts.nysd.598311/gov.uscourts.nysd.598311.34.0.pdf>;

Josh Blackman & Seth Barrett Tillman, ‘Why the Manhattan DA’s Trump Case Cannot Be Removed to Federal Court,’ Lawfare: Hard National Security Choices (May 18, 2023, 8:14 AM), <https://www.lawfaremedia.org/article/why-the-manhattan-da-trump-case-cannot-be-removed-to-federal-court>, <http://ssrn.com/abstract=4452183>.

As for my participation in the Section 3 cases. I made five arguments against its applicability to Trump. The “office” and “officer” argument was the least and last of the five which I argued in my paper on the subject. My primary and lead argument relied on Griffin’s Case (1869)—i.e., that positive enforcement of Section 3 requires a federal statute. See Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 350 (Oct. 2024), <https://ssrn.com/abstract=4568771>, <https://drive.google.com/file/d/1L4YWw4jzLmmYY8Tpg4-LFLXQNlNT3H5m/view>. The same was true in my amicus brief. See Brief Submitted for Professor Seth Barrett Tillman as Amicus Curiae in Support of Petitioner [Donald J. Trump], Trump v. Anderson, Sup. Ct. No. 23-719 (U.S. Jan. 9, 2024) (filed by Professor Josh Blackman et al.), 2024 WL 184282, <https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-719.html>, <https://ssrn.com/abstract=4687495>.

I hope that helps.

Seth

Seth Barrett Tillman, ‘In Today’s Trump-related E-mail,’ New Reform Club (Nov. 9, 2:34 AM), <https://reformclub.blogspot.com/2025/11/in-todays-trump-related-e-mail.html>;