Letter to the Editor at the New York Times, Responding to Neal K. Katyal and George T. Conway III, Why Is Mitch McConnell So Afraid of John Bolton?

Letter to the Editor

letters@nytimes.com

January 10, 2020

Re: Neal K. Katyal and George T. Conway III, Why Is Mitch McConnell So Afraid of John Bolton?, The New York Times (Jan. 7, 2020), <https://www.nytimes.com/2020/01/07/opinion/john-bolton-testify.html>.

Katyal and Conway ask: Why the Republican-led Senate and its leadership have expressed an unwillingness to call John Bolton as a witness in the yet-to-be-held impeachment inquiry? But the better question remains why the Democratic-led House has not done that very thing. Because impeachment proceedings have not yet begun, there is still an opportunity for the House’s would-be impeachment managers to call Bolton as a witness and to add his testimony to the record which (one anticipates) will be sent to the Senate. If the Democratic-controlled House is unwilling to exercise its subpoena powers, then there is no cause to fault the Republican-controlled Senate.

It has always been the House’s duty to establish a complete record justifying its decision to impeach the President.

Seth Barrett Tillman

Seth Barrett Tillman, Submitted as a Letter to the Editor at The New York Times, Responding to Neal K. Katyal and George T. Conway III, Why Is Mitch McConnell So Afraid of John Bolton?, New Reform Club (Jan. 10, 2020, 5:52 AM), <https://reformclub.blogspot.com/2020/01/letter-to-editor-submitted-only.html>; 

An E-mail to Professor Hathaway

I remain somewhat puzzled by your reticence and the reticence of other critics of the President. The AP quoted you as saying: “Trump’s threat amounted to ‘a pretty clear promise of commission of a war crime.’” See <https://apnews.com/8d3385ab6c29c3da3ab9b081bae53884>. And here <https://twitter.com/oonahathaway/status/1213924990254551046>, you wrote that Trump’s “tweet threatens to break several laws.” Does the tweet, which you characterize as a “threat” or “promise,” actually break any laws, including the law of land warfare and/or the 1907 [Geneva] Convention? Or, are you making just a slippery slope argument, i.e., the tweet puts one-and-all on notice that Trump will [or is likely to] break the law (even if he has not done so yet)? 

I don’t really understand your position.

Seth

Seth Barrett Tillman, An E-mail To Professor Hathaway, New Reform Club (Jan. 9, 2020, 4:22 AM), <https://reformclub.blogspot.com/2020/01/an-e-mail-to-professor-hathaway.html>. 

Second Thoughts About Religious Tests

You wrote that the members of the North Carolina legislature in 1809 who sought to enforce the protestants-only religious test against its Jewish member, Jacob Henry, “really do look stupid.”

They certainly look stupid to Americans today. And they were at risk of looking stupid to many of their more broad minded contemporaries. Still, I think you are being overly judgmental, if not harsh. They were placed in a position which required their enforcing a bad legal rule. That is always difficult. I could be wrong, but my sense from fairly extensive contacts with a broad range of Jews in the UK ... is that most are quite attached to the monarchy ... along with the monarch being head of the Anglican Church. Were the Queen to publicly and actively become an atheist/agnostic or to convert to a non-Christian religion (including Judaism) or to affiliate with a church not in communion with the established church, I think most Jews in the UK would expect (in the normative sense) her to abdicate, much like Edward VIII did. I am not expert in UK law, but if the Queen converted out, I think statutes would come into play displacing her from her position—even if she did not abdicate. If British government officials enforced those statutes on this point, I would think it would be a somewhat unfortunate result and a bad law to boot. I also think most British Jews would be loath to call those charged with enforcing settled-law (about which the enforcers might even personally disagree) bigots or stupid. Of course, such a result—based on a religious test—is wholly un-American, which is precisely the point. North Carolina in 1809 with its House of Commons and its two members for the counties and one member for the towns was modelled on Blake’s England: it was still midstream between an older British identity and now modern American identity.

Seth Barrett Tillman, A Religious Test in America?: New Sources on the 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat (submitted for 2020 publication), <https://ssrn.com/abstract=3498217>.

Seth Barrett Tillman, Second Thoughts About Religious Tests, New Reform Club (Jan. 6, 2020, 1:53 PM), <https://reformclub.blogspot.com/2020/01/second-thoughts-about-religious-tests.html>.

Representative Robert Goodloe Harper: A House Manager at the Blount Impeachment

Robert Goodloe Harper, in closing for the House Managers in the Blount impeachment, argued: 

The first of these clauses which has been relied on, is found in the 2d section of the 2d article of the Constitution, where it is provided, that ‘the President, by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers, and Consuls, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.’ But does it follow, from this, that none are to be considered as officers of the United States, except those whom the President appoints [as argued by the Blount’s attorneys]? So far from it, that the clause expressly speaks of officers who are not to be appointed by the President, and whose appointment is otherwise provided for, by the Constitution itself. The clause, therefore, proves nothing; for, as there are officers who are not appointed by the President, it cannot be inferred, that Senators are not officers, because the President does not appoint them.[1]

Harper’s interpretation only works if “established by law” extends to positions authorized by the Constitution. On the other hand, if “shall be established by law”[2] extends only to positions authorized by future statutes, i.e., post ratification federal statutes, in other words, if “shall” here expresses futurity, then persons holding elected positions created by the Constitution are not “officers of the United States” per the Appointments Clause. These two very different readings of the Appointments Clause, Harper’s and the alternative reading, are at the root of much modern confusion involving the Appointments Clause and the Constitution’s “officer of the United States” language.

Another way of thinking about the interpretative problem is this: What is the function of the not herein otherwise provided for language in Article II, Section 2? On Harper’s reading, this phrase tells the reader that the appointment of some officer of the United States positions are “otherwise provided” for in other constitutional provisions. The alternative reading is that this not herein otherwise provided for language is telling the reader precisely the opposite. In other words, Article II, Section 2 is exclusive—no other provisions in the Constitution provide authorization for appointing officers of the United States. 

Finally, notice that Article II, Section 2 uses the language of “appointment.” But the provisions establishing the primary constitutionally created positions—President, Vice President, Representatives, and Senators—generally eschew “appointment” language, in favor of alternative language. Presidents are “elected” or “chosen” by electors, and the electors “vote by ballot.” Article II. Representatives and Senators are “chosen” by the People and by the state legislatures, respectively. Article I, amended by Amendment XVII. In short, Officers of the United States are appointed; by contrast, constitutionally created positions are elected. The Supreme Court has adopted this position repeatedly.[3]

Now if Harper were correct, if there is no distinction between appointed officers and elected constitutionally created positions, then consider the Sinecure or Ineligibility Clause: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time.” Article I, Section 6, Clause 2 (emphasis added) If Harper were correct, and if a senate seat (after a salary increase) goes vacant, then it would seem the Constitution prohibits a state governor filling the vacancy with a then-serving member of the House. Who believes that? What about the presidency? Imagine if a senator wins in the electoral college, but the House, Senate, and outgoing president are all in the hands of the other party. If after the electoral college votes, the lame duck House, Senate, and president increase the salary of the presidency, then—on Harper’s reading—the incoming president-elect would not be eligible for the presidency. I suggest that it is precisely to avoid such results that the Constitution hardwires the distinction between appointment and election.

In every day language, the presidency is an officer of the United States, but that is not how that language is used in the Appointments Clause and elsewhere in the Constitution of 1787. Associate Justice Joseph Story arrived at this conclusion in his Commentaries on the Constitution (1833).[4] Subsequent commentators are in accord [5], as well as the Supreme Court.[6] 

Seth Barrett Tillman, Representative Robert Goodloe Harper: A House Manager at the Blount Impeachment, New Reform Club (Dec. 27, 2019, 9:05 AM), <https://reformclub.blogspot.com/2019/12/representative-robert-goodloe-harper.html>;

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[1] Proceedings on the Impeachment of William Blount, A Senator of the United States from the State of Tennessee, for High Crimes and Misdemeanors 93 (Philadelphia, Joseph Gales, 1799) (available on HeinOnline). 

[2] Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424 (1990) (Kennedy, J.) (“Money may be paid out only through an appropriation made by law; in other words, the payment of money from the Treasury must be authorized by a statute.” (emphasis added)); Akhil Reed Amar, America’s Constitution: A Biography 170 (2006) (stating that “by Law,” as used in the Succession Clause, means “by a statute presumably enacted in advance”); see also Case Comment, Constitutional Law: Apportionment Bills Subject to Governor’s Veto, 50 Minn. L. Rev. 1131, 1132 (1966) (“Where [a] constitution provides that certain items be ‘prescribed by law’ or that passage be ‘by law,’ the full lawmaking process clearly is required—passage by both houses plus the governor’s approval or re-passage in case of veto.”); Harris L. White, Note and Comment, Constitutional Law: Joint Resolutions: Effect upon Statutes, 22 Cornell L.Q. 90, 92 (1936) (same); J. Alexander Fulton, Presidential Inability, 24 Alb. L.J. 286, 286 (1881) (same). 

[3] See United States v. Mouat, 124 U.S. 303, 307 (1888) (Miller, J.) (“Unless a person in the service of the government, therefore, holds his place by virtue of an appointment by the president, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not strictly speaking, an officer of the United States.”); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 497–98 (2010) (Roberts, C.J.) (explaining that “[t]he people do not vote for the ‘Officers of the United States.’ Art. II, § 2, cl. 2. They instead look to the President to guide the ‘assistants or deputies . . . subject to his superintendence.”’ (quoting Hamilton’s Federalist No. 72)). 

[4] 2 Joseph Story, Commentaries on the Constitution of the United States § 791, at 260 (Boston, Hilliard, Gray, and Co. 1833), <http://bit.ly/2RlUwhX>. 

[5] David A. McKnight, The Electoral System of the United States 346 (Philadelphia, J.B. Lippincott & Co. 1878) (“[I]t is obvious that ... the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.”’). 

[6] Burton v. United States, 202 U.S. 344, 369–70 (1906) (Harlan, J.) (“[A]nyone convicted under [the statutory] provision[[] shall be incapable of holding any office of honor, trust, or profit ‘under the government of the United States,’ refers only to offices created by, or existing under the direct authority of, the national government, as organized under the Constitution, and not to offices the appointments to which are made by the states, acting separately, albeit proceeding, in respect of such appointments, under the sanction of that instrument. While the Senate, as a branch of the legislative department, owes its existence to the Constitution, and participates in passing laws that concern the entire country, its members are chosen by state legislatures, and cannot properly be said to hold their places ‘under the government of the United States.”’). 

Tillman’s Posts on Lawfare and in The Atlantic

Seth Barrett Tillman, Reading the Senate Rules of Impeachment Litigation: A Response to Hurd and Wittes, Lawfare: Hard National Security Choices (Dec. 9, 2019, 12:16 PM), <https://www.lawfareblog.com/reading-senate-rules-impeachment-litigation-response-hurd-and-wittes>, <https://ssrn.com/abstract=3499577>; 

Josh Blackman & Seth Barrett Tillman, Defining a Theory of “Bribery” for Impeachment, Lawfare: Hard National Security Choices (Dec. 6, 2019, 12:43 PM), <https://tinyurl.com/trafz4f>, <http://ssrn.com/abstract=3492627>; 

Seth Barrett Tillman & Josh Blackman, Is Robert Mueller an “Officer of the United States” or an “Employee of the United States”?, Lawfare: Hard National Security Choices (July 23, 2018, 2:50 PM), <https://tinyurl.com/y9kmvn46>, <http://ssrn.com/abstract=3214158>; 

Josh Blackman & Seth Barrett Tillman, The Weird Scenario That Pits President Pelosi Against Citizen Trump in 2020, The Atlantic (Nov. 20, 2019, 6:40 AM ET), <https://www.theatlantic.com/ideas/archive/2019/11/2020-election-could-pit-pelosi-against-trump/602308/>;  

Seth Barrett Tillman, Tillman’s Posts on Lawfare and in The Atlantic, New Reform Club (Dec. 9, 2019, 1:03 PM), <https://reformclub.blogspot.com/2019/12/tillmans-posts-on-lawfare-and-in.html>; 

Extract From My Next Article

Any number of other puzzles also remain. Our modern commentators look back to sources from 1835, 1829, 1824, and 1818—with the 1818 source referring to a prior source for Henry’s speech—American Orator,[1] which I have been unable to locate. What the original source of Henry’s speech was remains unclear. Certainly, the Commons’ Journal is not helpful. Modern commentators also look to Gaston’s 1835 speech. Gaston made the “officer” argument there, but he did not positively assert that that he or anyone else made that argument in the 1809 proceedings. So was that argument actually made in 1809?

          

And, of course, the chief puzzle remains. What line of reasoning (if any) led the members to reject the motion to vacate Henry’s seat? Was it Henry’s platitudinous (almost extra-legal) argument about religious toleration and freedom of conscience? Or, was it the more legalistic arguments brought by one or more of Henry’s purported supporters relating to the scope of the 1776 North Carolina Constitution’s “office”-language? One commentator affirms that it was both.[2] As he points to no sources, his explanation appears to be no more than a somewhat unsatisfying fudge. There is a third explanation—one not properly developed in the extant literature—to which I now turn.

...

If the reader has stubbornly persisted in going with the Author thus far, I would ask you to go with me a bit farther still. But here, admittedly, I shift from law and history, to conjecture and hypothesis. Perhaps some future sibyl, who will come after me, will fill in the intellectual gaps where I am unable to see. Is not the quality of the reported debate on the Henry motion—the sophistication, the complexity, and the sheer number of arguments marshalled on each side—all on one day’s notice—more than somewhat surprising? Is it just possible, might not we hope, that the debate was pre-planned and pre-arranged, viz., that Henry was set up? Perhaps the motion and subsequent debate were arranged to provide a public vehicle to debate Article 32 and to create a record towards its amendment, if not its abolition? If a cabal of members were quietly engineering such strategic parliamentary politics for the consumption of the wider demos, is there any reason we should be surprised? And if we were consigned by a trick of fate to similar circumstances, could we aspire to do any more than they did? 

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[1] I have checked: Increase Cooke, The American Orator (New Haven: Sydney’s Press, 1811), <https://tinyurl.com/t98c24m>; ibid. 2d ed. (Hartford: Oliver D. Cooke, 1814), <https://tinyurl.com/wa67de4>; ibid. (New Haven: Sydney’s Press, 1819), <https://tinyurl.com/tuv6hhk>. I have also checked Joshua P. Slack, The American Orator (Trenton, New Jersey: Daniel Fenton, 1815), <https://tinyurl.com/untl7tb>. Henry’s speech does not appear in these sources.

[2] Samuel A’Court Ashe, History of North Carolina [from 1783 to 1925], 2 vols. (Raleigh: Edwards & Broughton Printing Company, 1925), 2:207, <https://archive.org/details/historyofnorthca02ashe/page/n7>. 

Seth Barrett Tillman, New Sources on the 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat (posted Nov. 25, 2019) <https://ssrn.com/abstract=3498217>.

Brian L. Frye, Podcast, A Religious Test in America?—The Motion to Vacate Jacob Henry’s Legislative Seat, Ipse Dixit (Dec. 4, 2019) (interviewing Tillman), <https://shows.acast.com/ipse-dixit/episodes/seth-barrett-tillman-on-the-jacob-henry-and-the-meaning-of-o>. 

Seth Barrett Tillman, Extract From My Next Article, New Reform Club (Dec. 5, 2019, 4:26 AM), <https://reformclub.blogspot.com/2019/12/extract-from-my-next-article.html>; 

What the Democrats have Learned from their Failure in Connection with the Kavanaugh Hearings

This is what the Democrats have learned from their failure in connection with the Kavanaugh hearings. Don’t allege crimes which, if true, would leave physical evidence; rather, allege crimes which only exist in men’s hearts and minds. Should we go down that road, our next destination will be a world where men deny they have hearts and minds, and our final destination may be a world where that denial reflects the actual truth—a world where men have no hearts and minds at all.

Seth Barrett Tillman, What the Democrats have Learned from their Failure in Connection with the Kavanaugh Hearings, New Reform Club (Nov. 22, 2019, 11:03 AM), <https://reformclub.blogspot.com/2019/11/what-democrats-have-learned-from-their.html>;

Today, I agree with Professor Akhil Amar ....

Akhil Reed Amar, On Impeaching Presidents, 28 Hofstra L. Rev. 291, 313 (1999) (emphasis added), <https://digitalcommons.law.yale.edu/fss_papers/845/>: 

“The explicit role of the Chief Justice has profound implications for the proper ethical relations between Senators and the President. Suppose a sudden illness were to require the Chief Justice to resign. Although the senior associate justice might presumably fill in temporarily, at some point a new Chief Justice would need to be installed, and Article II, Section 2 tells us how this would happen. The President would appoint, with the advice and consent of the Senate, a new Chief Justice. In other words, even in the middle of a trial, the judges and the judged might need to confer and collaborate to pick the permanent presiding officer. Stranger things have happened.”

For the view that it is pellucidly clear that the senior associate justice may fill in during such circumstances, see Steve Lubet, Could Justice Thomas Substitute for Justice Roberts in an Impeachment Trial of President Trump?, The Faculty Lounge (Nov. 19, 2019, 9:15 AM), <https://tinyurl.com/wmsxu8u>. And you must read the many interesting and helpful comments that follow. 

Can both of these views be correct? I don’t see how. 

Seth

PS: For my views on this subject, see Josh Blackman & Seth Barrett Tillman, Could Justice Thomas Preside over President Trump’s Impeachment Trial?, Balkinization (Nov. 17, 2019, 1:10 PM), <https://balkin.blogspot.com/2019/11/could-justice-thomas-preside-over.html>. 

Seth Barrett Tillman, Today, I agree with Professor Akhil Amar ...., New Reform Club (Nov. 19, 2019, 11:29 AM), <https://reformclub.blogspot.com/2019/11/today-i-agree-with-professor-akhil-amar.html>. 

Could the President Recess Appoint Himself into the Chief Justice’s Position During his own Impeachment?

You ask: Could the President recess appoint himself into the chief justice’s position during his own impeachment? Your query raises the same subject as:

[a] May the Speaker preside when debate on the House floor involves investigating, censuring, disciplining, and/or expelling the Speaker?; and,

[b] May the Vice President preside when debate on the Senate floor involves investigating, censuring, disciplining, and/or impeaching the Vice President.

These situations are sometimes put forward as examples of defects in our Constitution, but this critique fails. In each of these situations, the relevant house would just go into the committee of the whole, and that would displace the presiding officer, which would resolve the conflict at issue. The committee will report back to the full House or Senate. If the committee had a majority supporting the imposition of some punishment, then the same majority can act when the committee reports to the full house. If two-thirds were necessary to take action, the same scenario would apply. If a two-thirds majority were available in the committee of the whole, then that same two-thirds majority can act when the committee reports back to the full house. At that stage, where the merits had been fully determined in the committee, it would not matter who was the presiding officer or if he were conflicted.

The only defect would be if the original motion to put the proceedings into the committee of the whole led to an evenly divided House or Senate. I am not going to lose any sleep in regard to that potential minuscule problem. Let’s get real here. Consider the scenario involving an impeachment of the Vice President before the Senate. It is very unlikely that a Vice President will be impeached; it is also unlikely that an impeached Vice President will attempt to preside; and it is also unlikely that an impeached Vice President, prior to trial in the Senate, but who demands to preside in the Senate, will have the benefit of an evenly divided Senate.

Seth Barrett Tillman, Could the President Recess Appoint Himself into the Chief Justice’s Position During his own Impeachment?, New Reform Club (Nov. 18, 2019, 8:01 AM), <https://reformclub.blogspot.com/2019/11/could-president-recess-appoint-himself.html>; 

The Old School

“The judge is an arbiter, not an inquisitor. He must not run a line of his own. He has no battle to fight. He must not, as the appeal court has several times said, descend into the arena. He is a referee and not a player, but not a mere referee. In relation to the facts of the case as distinct from the law, his power resembles that of a constitutional monarch of the Victorian age. He can ask any question he likes when he likes or he can keep silent until he has to sum up. Complete silence is, however, no more the mark of a good judge than is loquacity. By the discreet use of his power he softens the rigidities of the adversarial process. He can, and often does, ask the question which neither side dares to ask; or the question which one side is not allowed to ask and the other side does not want answered.”

Quoting from: Patrick Devlin, Easing the Passing: The Trial of Dr John Bodkin Adams (2nd edn., 1986) 74. 

Seth Barrett Tillman, The Old School, New Reform Club (Nov. 15, 2019, 7:38 AM), <https://reformclub.blogspot.com/2019/11/the-old-school.html>; 

The Moral History of the American Revolution

OK, I've gotta have this one. AND SO DO YOU. See below.

America's Revolutionary Mind is the first major reinterpretation of the American Revolution since the publication of Bernard Bailyn's The Ideological Origins of the American Revolution and Gordon S. Wood's The Creation of the American Republic. 

The purpose of this book is twofold: first, to elucidate the logic, principles, and significance of the Declaration of Independence as the embodiment of the American mind; and, second, to shed light on what John Adams once called the "real American Revolution"; that is, the moral revolution that occurred in the minds of the people in the fifteen years before 1776.

The Declaration is used here as an ideological road map by which to chart the intellectual and moral terrain traveled by American Revolutionaries as they searched for new moral principles to deal with the changed political circumstances of the 1760s and early 1770s. This volume identifies and analyzes the modes of reasoning, the patterns of thought, and the new moral and political principles that served American Revolutionaries first in their intellectual battle with Great Britain before 1776 and then in their attempt to create new Revolutionary societies after 1776.

The book reconstructs what amounts to a near-unified system of thought—what Thomas Jefferson called an “American mind” or what I call “America’s Revolutionary mind.” This American mind was, I argue, united in its fealty to a common philosophy that was expressed in the Declaration and launched with the words, “We hold these truths to be self-evident.”

HT: Instapundit.com--

And from Robert Bidinotto in his own words: I edited this book in manuscript, and let me tell you: It’s THE book our country needs right now, to counter the anti-American narratives that have been poisoning generations. THIS is the rationale for, and defense of, America that we have all been waiting for — and that we so desperately need in our time. If you are upset with how the history, principles, and Founders of America have been vilified and vandalized, then you absolutely, positively must get “AMERICA’S REVOLUTIONARY MIND” by Clemson historian C Bradley Thompson. I am thrilled to have helped edit this magnificent examination of America’s founding, revealed through Prof. Thompson’s deep and eloquent exploration of the ideas of the Declaration of Independence — as they were debated and championed by the people of that era. It is a rich work that will enrich your mind and spirit. Buy it today — and spread the word.

Order here: https://www.amazon.com/exec/obidos/ASIN/B07N8FSMYC/wwwviolentkicom

A Letter to SSRN

Today is November 6, 2019 and the monthly rankings have not been reported. There is no legal holiday or weekend interrupting the flow of regular work.

When will the November 1, 2019 rankings be reported?

Last month, the rankings were significantly delayed AND the numbers were reported as of the 6th of the month, rather than the 1st. Is this going to be the new norm? Rankings are just a counting (rather than analytic) exercise. Why is this so difficult?

Seth

Seth Barrett Tillman, A Letter to SSRN, New Reform Club (Nov. 6, 2019, 12:11 AM), <https://reformclub.blogspot.com/2019/11/a-letter-to-ssrn.html>.