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How Soon They Forget: Arresting State Judges (CORRECTED)

Steve Burkholder, ‘Massachusetts judge and ex-official accused of preventing migrant’s arrest by ICE,’ Washington Post (Apr. 25, 2019, 7:46 PM), <https://tinyurl.com/ymdkc8us>: 

“A Massachusetts state court judge and a former court officer were charged by federal prosecutors Thursday with obstructing justice for allegedly preventing an immigration and customs officer from arresting an undocumented immigrant at a courthouse west of Boston last year.”

Arthur John Keeffe, ‘Practicing Lawyer’s Guide to the Current Law Magazines,’ 48 American Bar Asso. J. 491, 491 (1962) (explaining that during the American Civil War, federal authorities arrested Judge James L. Bartol of the Maryland Court of Appeals and Judge Richard Bennett Carmichael of the Maryland Circuit Court, and the “latter was arrested while conducting court”).

What is described above happened under President Obama Trump-45 and under President Lincoln. Judges are not above the law; judges cannot interpose their courthouse and personal rules and policies against federal officers. And when state judges violate the law, they must be arrested .  .  . like you and me and anyone else. We all know that—or, at least, we should. 

Seth 

Seth Barrett Tillman, ‘How Soon They Forget: Arresting State Judges,’ New Reform Club (Apr. 25, 2025, 14:12 PM) (CORRECTED), <https://reformclub.blogspot.com/2025/04/how-soon-they-forget-arresting-state.html>; 

Tillman on “Corruption” in a Free Speech Case

 

 

Extract from: Declaration of Professor Seth Barrett Tillman [on Behalf of Plaintiff Dinner Table Action], Dinner Table Action v. Schneider, Civ. A. No. 1:24-cv-00430-KFW (D. Me. Apr. 23, 2025) (Karen Frink Wolf, Magistrate Judge, sitting by consent), ECF No. 62-3 (declaration filed by Charles M. Miller, Esq., Institute for Free Speech, and Joshua D. Dunlap, Esq., Pierce Atwood LLP) (complaint filed Dec. 13, 2024), 2025 WL -------, <https://www.courtlistener.com/docket/69464009/dinner-table-action-v-schneider/>, <https://ssrn.com/abstract=5225614>. 

[34] We might . . . ask: Do the anti-corruption concerns of the Framers and ratifiers, apart from constitutional text, supply a free-standing interpretive principle through which we could understand the Constitution? I believe the answer to this question is “no.” Where there is genuine ambiguity in a constitutional provision, a fair-minded interpreter who is aiming to determine a clause’s original public meaning can look to purpose, background assumptions, and policy concerns (such as limiting corruption) to determine the meaning and scope of a provision’s text. But where there is no genuine ambiguity, the agreed text should control. Likewise, a fair-minded interpreter should not look to Framers’ and ratifiers’ purposes, background assumptions, and policy concerns to generate interpretive principles abstracted from constitutional text. Why? First, no one agreed to purpose, background assumptions, and policy concerns. What was agreed to was the Constitution’s text. The Constitution nowhere uses the language of “corruption.” Thus, our injecting “corruption” into the interpretive process risks displacing other purposes, background assumptions, and policy concerns which were in play in 1787–1788. Second, we should not confuse a widely shared policy concern (e.g., limiting corruption) with widespread agreement as to what that policy entails. I do not doubt that every member of the Constitutional Convention sought to limit corruption. Corruption-discourse was widespread in the 18th century, at the Constitutional Convention, and in public debate on the Constitution during 1787–1788. But a shared use of corruption-related language in political debate does not mean that the participants in that debate had any widely shared understanding of what corruption was, or what policies would effectively limit corruption, or what level of corruption (if any) should be risked to facilitate accomplishing other important and widely shared policy goals. It is precisely because such questions are, in my view, unanswerable that our understanding of the law of the Constitution should be tethered to constitutional text. Finally, “corruption” is an amorphous term, as is “virtue” or the “common good.” In my opinion, the idea that specific substantial legal issues should be decided by reference to such amorphous terms, abstracted from constitutional text, is fundamentally unsound.

[35]    Corruption in the form of quid-pro-quo bribery is relatively easy to identify. When an elected official solicits or accepts a bribe in the form of cash or property for performing or promising to perform some public act (or some inaction), all the benefits flow to the recipient, and none to the public. The transaction is usually hidden from public view, and the money or property may be secreted in a closet or [placed] under an assumed name or false identity. And the recipient is unlikely to pay taxes on his “earnings.” Perhaps, this relative ease in regard to identifying such transactions is one reason why this wrong, that is, quid-pro-quo bribery, is among the three charges which will support a conviction under the Constitution’s Impeachment Clause.[1] By contrast where a public official trades an official action for another public act, it is much less clear if the public official’s conduct is a bribe or corrupt. On Lawfare, my co-author and I wrote:

Judge Frank Easterbrook stated this principle in even stronger terms regarding the conviction and sentencing of Illinois Governor Rod Blagojevich, who offered to appoint Valerie Jarrett, a close associate of President-elect Obama, to a vacant U.S. Senate seat, in exchange for Blagojevich’s receiving an appointment to the Obama cabinet. Blagojevich was convicted on multiple counts. On appeal, in U.S. v. Blagojevich (2015), the U.S. Court of Appeals for the Seventh Circuit found that particular counts of his conviction could not stand. Judge Easterbrook explained that “a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.” He added that “[g]overnance would hardly be possible without” political log-rolling, “which allow[s] each public official to achieve more of his principal objective while surrendering something about which he cares less, but the other politician cares more strongly.”

Thus, according to Easterbrook, in such circumstances, even mixed motives are irrelevant. Such acts are presumptively lawful, and should not be investigated, let alone be considered for indictment or impeachment. If there is any evidence that there was some sort of secret benefit (such as a suitcase full of cash), then the government can investigate and, if warranted, prosecute that additional act. The secretness of the benefit is evidence of corrupt intent. Where one public official act is traded for another public official act, there has not been any illegal conduct.

We can think of one high-profile and far more brazen effort by a president to improve his party’s prospects through the use of official communications. In 1864, during the height of the Civil War, President Lincoln encouraged Gen. William Tecumseh Sherman to allow soldiers in the field to return to Indiana to vote. What was his primary motivation? It was to make sure that the government of Indiana remained in the hands of Republican loyalists who wished to continue the war until victory. This action risked [temporarily] undercutting the military effort by depleting the ranks. Lincoln had dueling motives. Privately, he sought to secure a victory for his party. This personal interest should not impugn his public motive: win the war and secure the nation.[2]

A common definition, but by no means universal definition, for “corruption,” is using public power or resources for private gain or ends. Using this definition, the key problem for deciding what is or is not corrupt would depend on what is considered “private gain or ends” as opposed to legitimate public ends.[3] In his PhD dissertation, Professor Jonathan Gienapp wrote:

In the wake of several political defeats (including the dispute over the [B]ank [of the United States]), Madison began spending more time with [his] old friend Jefferson. The two began more consciously recognizing the connection between their relationship and the political fate of the nation. In the spring of 1791 the two Virginians took a fateful “botanizing” tour north to New York and New England during which time they contemplated opposition and forged political alliances. From their perspective, the situation was too dire, Hamilton’s schemes too pernicious, and Washington’s innocence too unreliable not to take more drastic steps.

The critical move was to bring Philip Freneau, who had acquired a reputation through his earlier newspaper work, to Philadelphia. Just days after Washington signed the bank bill into law, [Secretary of State] Jefferson offered Freneau a position as translating clerk in the State [D]epartment in the hope that he would establish a newspaper to challenge John Fenno’s strongly pro-administration Gazette of the United States. Freneau agreed and in October began publishing the National Gazette, a paper which while at first tame would explode in anti-Hamiltonian hysteria the next spring in the wake of the financial speculations that had begun to unsettle the nation. With rival newspapers unleashed, before long open partisanship would consume the infant republic.[4]

I do not doubt Gienapp’s report of the history here. What is interesting about this passage is that it does not address whether or not, given all the circumstances, and then prevailing norms, Jefferson’s appointing Freneau to a public post was corrupt. Sometimes seeing the issue, and its complexity, is more important than identifying an answer (or, better, what one believes to be the answer).[5]

A corruption-minimalist would argue that Jefferson was not seizing Freneau’s public salary, and that (as far as we know) Freneau, like other potential candidates for the State Department translator position, was capable and, in fact, did his job. The public was not meaningfully disadvantaged by the appointment and the public received the primary benefits for which Congress authorized the creation of that position and its compensation with a salary drawn on the public treasury. Using that narrow framework, Jefferson’s conduct was not wrongful or corrupt. Furthermore, Jefferson subjectively believed that his faction’s winning seats in Congress and his prevailing in a future contest for the presidency was in the public interest.

By contrast, a corruption-maximalist would argue that Jefferson was not choosing the candidate most fit for the job. He was not using his control over a public position entirely for the ends for which Congress authorized the position and authorized its compensation with a salary drawn on the public treasury. Rather, he was using the position to facilitate an arguably private interest: his and his faction’s prevailing in contested elections. He was using public power, at least in part, for private ends. And in arriving at that conclusion, Jefferson’s subjective and self-interested beliefs as to what constitutes good policy and who is best capable of bringing that about (that is, himself or his political opponents) should play no role.

          So who is correct? The corruption-minimalist or the corruption-maximalist? Honestly, I do not think this question has anything like a clear answer. Furthermore, I do not think there is any way to determine if the Framers, ratifiers, and the public circa 1788 were, systematically as a group, closer to one of these two views or to the other. We do not have information in regard to their views at this level of specificity.[6] All we have is the language they agreed to in the as-ratified Constitution. It is the meaning of that language which should be our central focus.

          The real issue is something else entirely. Had Jefferson been impeached by the House or had a prosecutor sought to try Jefferson for (non-quid-pro-quo) criminal bribery or extortion, would the merits have been decided by any particular 18th conception of corruption? I think not. Rather corruption would have become a vehicle casually used to decide the political contest between the Hamiltonian and Jeffersonian factions—the incipient factions which gave birth to our first political parties as the Washington administration dragged on and came to a close.[7] And that’s the point: corruption, as that term was used in the late 18th century, is conceptually too amorphous to determine concrete legal questions involving the Constitution, and where that concept is given room, it merely provides an awkward arrow in the quiver held by partisans in naked contests for political power. Finally, it is worth noting that the Framers had actually included “corruption” as an impeachable offense in the draft constitution reported by the Committee of Detail, but it was subsequently dropped out.[8] As a result, the Framers did not include term “corruption” in any provision of the Constitution of 1788—so, whatever they meant by that term, they left it out, apparently deliberately after having considered including it, and for that reason, among others, we should not inject their understanding of that term back into our (and their) Constitution.

Seth Barrett Tillman, ‘Tillman on “Corruption” in a Free Speech Case,’ New Reform Club (Feb. 23, 2025, 3:13 AM), <https://reformclub.blogspot.com/2025/04/tillman-on-corruption-in-free-speech.html>; 

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[1] See U.S. Const. art. II, § 4 (“The President, Vice President and all civil Officers of the  United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” (emphasis added)).

[2] Josh Blackman & Seth Barrett Tillman, Defining a Theory of “Bribery” for Impeachment, Lawfare: Hard National Security Choices (Dec. 6, 2019, 12:43 PM), https://www.lawfaremedia.org/article/defining-theory-bribery-impeachment (bold added) (cited 6 times).

[3] There will always be borderline and other hardcases. For example, where a public official intentionally spends public funds absent legislative (or other necessary) authorization, such actions may be done for the best motives even if they are not strictly legal. But are such actions corrupt? Lincoln, for example, at the outbreak of Civil War hostilities, spent public funds to arm and protect the Union at a time when Congress was out of session and had not authorized such actions. See Note, Recent Emergency Legislation in West Germany, 82 Harv. L. Rev. 1704, 1708–09 (1969). But see Paul Einzig, The Control of the Purse 166 (1959) (noting a House of Commons 1784 resolution “to the effect that public officers responsible for paying out public money without the authority of an Appropriation Act would be guilty of [a] ‘high crime and misdemeanour, a daring breach of public trust, derogatory to the fundamental privileges of Parliament, and subversive to the Constitution.’” (quoting the resolution)).

[4] Jonathan Gienapp, The Transformation of the American Constitution 305–06 (2013) (footnotes omitted) (unpublished Ph.D. dissertation, Johns Hopkins University Dep’t of History) (on file with ProQuest Dissertations & Theses Global) (footnotes omitted).

[5] Compare Jonathan Gienapp, Removal and the Changing Debate over Executive Power at the Founding, 63 Am. J. Legal Hist. 229, 237–38 (2023) (arguing that Hamilton’s “The consent of that body would be necessary to displace as well as to appoint”-language in Federalist No. 77 referred to removal, and not to replacement), with 3 Joseph Story, Commentaries on the Constitution of the United States §§ 1532–1533 (Boston, Hilliard, Gray, & Co. 1833) (explaining that presidential “removal takes place in virtue of the new appointment [that is, by replacement], by mere operation of law” and that this was Hamilton’s position in Federalist No. 77). See generally Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010) (cited 51 times) (explaining that Hamilton’s use of “displace” in Federalist No. 77 is ambiguous, but remaining generally supportive of Justice Story’s position).

[6] See, e.g., [F.H. Buckley, The Republic of Virtue 72, 222 n.4 (2017)] (criticizing Professor Buckley’s position for extending well-grounded and historically-rooted corruption concerns relating to the executive’s “bribing” members of the legislature by appointing members to lucrative office . . . to other factual circumstances relating to a member of the legislature’s holding a second elected position absent intervention by the executive).

[7] One might say that Hamilton predicted all this in Federalist No. 65. In discussing impeachment, Hamilton wrote:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

Federalist No. 65 (1788) (Hamilton) (italics added).

[8] See Madison, Notes, in [2 The Records of the Federal Convention of 1787, at 186 (Max Farrand ed., 1911)] (reproducing August 6, 1787 report of the Committee of Detail); Journal, id. at 422 (approving, August 27, 1787, “treason, bribery, or corruption” language); Madison, Notes, id. at 550 (reporting September 8, 1787 debate where “mal-administration” was considered, but not voted upon, and “corruption” was apparently dropped in favor of “other high crimes & misdemeanors”); supra at 600 (reproducing, from September 12, 1787, the Committee of Style’s proposed draft impeachment provision, which did not make use of any “corruption” language).

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 until 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 defendant’s attorney—the DOJ might not have had time to consult an agency client (if an agency is the defendant-client) or the President (if the President is the defendant-client). 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>;