1663 and 1789

 

 

Letter from George Washington to Eléonor François Élie, Comte de Moustier (May 25, 1789), in 30 The Writings of George Washington 333, 334 (John C. Fitzpatrick ed., 1939):

 

The impossibility that one man should be able to perform all the great business of the State, I take to have been the reason for instituting the great Departments, and appointing officers therein, to assist the supreme Magistrate in discharging the duties of his trust.

 

Huang Zongxi, Waiting for the Dawn: A Plan for the Prince (1663):

 

The rationale for public officials lies in the fact that the empire is too big for one man [that is, the emperor] to govern and that it is necessary [for him] to share the work with others. Therefore, when I come to serve, it is for the sake of the whole empire and not just the ruler. (reported in: Michael Wood, Story of China 303 (2020))

Seth Barrett Tillman, 1663 and 1789, New Reform Club (Mar. 10, 2023, 7:34 AM), <https://reformclub.blogspot.com/2023/03/1663-and-1789.html>; 

Part II, The Nerdiest Debate

Professor Vladeck takes the view that “nothing at all turns on this debate (except the correct Bluebook citation form for Taney’s published opinion in Ex parte Merryman).” Steve Vladeck, SCOTUS Trivia: Circuit Justice or Chief Justice, In Chambers?, One First (Feb. 20, 2023), https://tinyurl.com/59rx6mhz. Not true. Many have criticized the parties for failing to appeal Taney’s Merryman decision to the Supreme Court. See [Justice] Stephen Breyer, The Court and the World: American Law and the New Global Realities 16 (2015) (“[Lincoln] did not release John Merryman. Neither did he appeal the ruling, as he might have done.” (emphasis added)); Harold H. Bruff, Untrodden Ground: How Presidents Interpret the Constitution 135 (2015) (“Lincoln should either have let Merryman go or appealed the order to release him.”); Thomas J. DiLorenzo, Lincoln Unmasked: What You’re not Supposed to Know About Dishonest Abe 93 (2006) (“The Lincoln administration could have appealed the chief justice’s ruling, but it chose to simply ignore it . . . .”); Michael Stokes Paulsen & Luke Paulsen, The Constitution: An Introduction 171 (2015) (“Lincoln defied Taney’s unilateral order . . . declining even to appeal Taney’s order to the full Supreme Court.”); Richard H. Fallon, Jr., Executive Power and the Political Constitution, 2007 Utah L. Rev. 1, 22 (“[T]ake the best-known example . . . Lincoln defied the court in Merryman without bothering to appeal . . . .” (footnote omitted)); Paul Finkelman, Limiting Rights in Times of Crisis: Our Civil War Experience—A History Lesson for a Post 9-11 America, 2 Cardozo Pub. L. Pol’y & Ethics J. 25, 39 (2003) (noting that “Merryman did not appeal his incarceration to the full Supreme Court”); Michael Stokes Paulsen, Lincoln and Judicial Authority, 83 Notre Dame L. Rev. 1227, 1285 (2008) (“[Lincoln] did not obey Taney’s order, nor did his administration seek any sort of appeal to the full Supreme Court.”); Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81, 92 (1993) (posing the question whether Lincoln was “required [in Merryman] either to comply or to seek review and reversal by the full Supreme Court”); see also Jonathan W. White, The Strangely Insignificant Role of the U.S. Supreme Court in the Civil War, 3 J. Civil War Era 211, 218 (2013) (“An appeal to the [full] Supreme Court, in other words, would have been imprudent.”); cf. Frank W. Dunham, Jr., Where Moussaoui Meets Hamdi, 183 Mil. L. Rev. 151, 156 (2005) (affirming, absent documentary support, that “[r]ather than adher[ing] to the ruling, Lincoln appealed [Merryman] to the full Supreme Court”). However, an appeal in Merryman was only possible if it was a federal circuit court decision—a forum from which such an appeal was provided for by statute. On the other hand, if Merryman was a chambers decision, then no such appeal was possible, and it follows that any criticism directed to the parties for failing to appeal was and remains an intellectual nonstarter. See The Federalist No. 63, at 338 (James Madison) (J.R. Pole ed., 2005) (“Responsibility in order to be reasonable must be limited to objects within the power of the responsible party . . . .”); C.H. McIlwain, Constitutionalism and the Changing World 282 (1939) (“[T]here can be no responsibility without power and there should be no power without responsibility.”); Enoch Powell, M.P. (for South Down, Northern Ireland), Christianity and the Curse of Cain, in Wrestling with the Angel 13 (1977) (“No one can be responsible for what he does not control.”); J. Enoch Powell, M.P. (for Wolverhampton, South-West, Eng.), Shadow Secretary of State for Defence, Speech at Wolverhampton (Dec. 12, 1966), in Freedom and Reality 197, 199, 260 (John Wood ed., 1969) (“‘[R]esponsibility’ depends upon the prior question of power . . . .”).

The above footnote is from: Seth Barrett Tillman, What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others), 13(1) Br. J. Am. Leg. Studies (forth. circa Mar. 2024) (manuscript at 17 n.45) (peer review), <http://ssrn.com/abstract=4157572>. 

Seth Barrett Tillman, Part II, The Nerdiest Debate, New Reform Club (Mar. 8, 2023, 11:54 AM), <https://reformclub.blogspot.com/2023/03/part-ii-nerdiest-debate.html>; 

See also Seth Barrett Tillman, Part I, The Nerdiest Debate, New Reform Club (Mar. 3, 2023, 2:22 AM), <https://reformclub.blogspot.com/2023/03/the-nediest-debate.html>; 

Part I, The Nerdiest Debate

Stephen I. Vladeck, The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act, 80 Temple L. Rev. 391, 392 n.2 (2007) (characterizing the question posed in the instant Article (and elsewhere) as a “seemingly pedantic historical footnote”); Steve Vladeck, SCOTUS Trivia: Circuit Justice or Chief Justice, In Chambers?, One First (Feb. 20, 2023) (“Speaking of the Supreme Court and the Civil War, in the battle for nerdiest debate among [f]ederal [c]ourts scholars, the dispute over the specific capacity in which Chief Justice Taney decided Ex parte Merryman has to be up there.”), https://tinyurl.com/59rx6mhz. Vladeck repeats all too many of the usual historical myths: e.g., “Merryman was a former Maryland legislator [?] and Confederate sympathizer [?] accused [?] of being part of an organized plot to prevent Union troops from being sent through Baltimore to reinforce Washington in late April 1861 [?]” and “[w]hen Merryman was arrested by federal troops and sent to Fort McHenry for detention, his father [?] (who just happened to have been Taney’s college roommate [? and !]) promptly asked the Chief Justice, no friend of Lincoln’s, for a writ of habeas corpus.” Id. But see Merryman, 17 F. Cas. at 146 (reporting Cadwalader’s written return, i.e., his response, to Taney’s habeas writ as stating that Merryman was “charged with various acts of treason” absent any specific mention of events during April 1861 or events in Baltimore); ‘Merryman, John, of Hayfields,’ in 1 The Biographical Cyclopedia of Representative Men of Maryland and District of Columbia 312, 313 (Baltimore, National Biographical Publishing Company 1879) (noting that Merryman was a member of the Maryland legislature in 1874—absent any indication of prior membership), https://tinyurl.com/mtf43mbk; id. at 312 (explaining that shortly before Merryman’s seizure by the U.S. Army, Merryman “was introduced to [U.S.] Major Belger, and offered to render him or the [Union] troops any service required; and if necessary would slaughter his [Merryman’s] cattle to supply the[] [Union troops] with food”); Jonathan W. White, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman passim (2011) (reporting Merryman’s post-American Civil War service in the state legislature, and not reporting any 1861 or pre-1861 service); ‘John Merryman’ in Francis B. Culver, Merryman Family, 10(3) Md. Hist. Mag. 286, 296–297 (Sept. 1915) (noting that Merryman was a member of the state legislature in 1874—absent any indication of prior membership), https://tinyurl.com/4es42enp; Vladeck, The Field Theory, supra, at 408 (noting that Merryman “was elected to the Maryland House of Delegates in 1874” (emphasis added)); but see also Brian McGinty, The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus 59–60 (2011) (describing Merryman’s failed 1855 campaign for a state legislative seat). But see generally Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481, 485 n.11, 486 n.12, 487–88 (2016) (contesting Ex parte Merryman’s many myths—including several of those raised by Vladeck and others). For what it is worth, Merryman was elected to the Maryland lower house in 1873, for a term which, apparently, began in 1874. See General Assembly of Maryland, The Maryland Union, Nov. 13, 1873, at 2 (reporting Merryman’s election to the House of Delegates as a Democratic-Conservative for Baltimore County); General Assembly of Maryland, Montgomery County Sentinel, Nov. 14, 1873, at 3 (same). Finally, Vladeck’s claim that Merryman’s father and Chief Justice Taney were “college roommate[s]” is novel. I suppose Vladeck’s claim is built on Paulsen’s claim and Yoo’s claim that Merryman’s father and Taney attended Dickinson’s College “together”. Michael Stokes Paulsen, The Merryman Power and the Dilemma of Autonomous Executive Branch Interpretation, 15 Cardozo L. Rev. 81, 90 n.27 (1993) (citing Swisher, infra); John Yoo, Lincoln and Habeas: of Merryman and Milligan and McCardle, 12 Chap. L. Rev. 505, 513 & n.81 (2009) (citing Swisher, infra). Both Paulsen and Yoo relied on Swisher. But Swisher does not report that the two attended “together;” rather, Swisher only reports that the two “attended Dickinson College during the same period.” 5 Carl B. Swisher, The Oliver Wendell Holmes Devise, History of the Supreme Court of the United States: The Taney Period 1836–64, at 845 (1974) (emphasis added). And Swisher’s modest historical claim’s basis, documentary or otherwise, remains obscure. Indeed, modern research suggests that Swisher was in error. See White, supra, at 130 n.1 (explaining that “Dickinson College has no record of Merryman’s father, Nicholas Rogers Merryman, attending”). See generally D.M. Lucas & J.G. Wigmore, The Broken Telephone Effect, 22(2) Canadian Soc’y of Forensic Sci. J. 225 (1989), <https://tinyurl.com/2rh6vezt>.

The above footnote is from: Seth Barrett Tillman, What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others), 13(1) Br. J. Am. Leg. Studies (forth. circa Mar. 2024) (manuscript at 10 n.23) (peer review), <http://ssrn.com/abstract=4157572>. 

Seth Barrett Tillman, Part I, The Nerdiest Debate, New Reform Club (Mar. 3, 2023, 2:22 AM), <https://reformclub.blogspot.com/2023/03/the-nediest-debate.html>; 

See also Seth Barrett Tillman, Part II, The Nerdiest Debate, New Reform Club (Mar. 8, 2023, 11:54 AM), <https://reformclub.blogspot.com/2023/03/part-ii-nerdiest-debate.html>; 

 

President Lincoln and Chief Justice Taney in 1861

I am not entirely sure that Taney and Lincoln had strongly different views about Ex parte Merryman, habeas, and suspension.

If Lincoln had believed he had unilateral authority to suspend habeas (even limited to when Congress was not in session), Lincoln certainly could have said so, and done so in clear language. And, concomitantly, he could have spared Congress and his party’s members the controversial effort of granting him statutory authority to suspend habeas—which is what Congress granted in 1863.

Likewise, if Taney believed that Lincoln lacked authority to temporarily suspend habeas while Congress was not in session, Taney could have granted John Merryman what Merryman asked for: an order, directed to Merryman’s jailer, ordering Merryman’s release. Taney could have—and should have—risked disobedience by the Executive Branch. I don’t take seriously the reports that Taney feared his being arrested. If he acted in this manner, ie, if he refused to grant Merryman relief, because he feared arrest, Taney should have put that in his opinion. What Taney primarily wanted (as I see it) was for Lincoln to take public and political responsibility for his (Lincoln’s) decision to suspend habeas. Lincoln’s July 4th address did just that—so, it is not clear to me that they were really that far apart.

Seth Barrett Tillman, ‘President Lincoln and Chief Justice Taney in 1861,’ New Reform Club (Feb. 28, 2023, 6:43 AM), <https://reformclub.blogspot.com/2023/02/president-lincoln-and-chief-justice.html>; 

Some Thoughts on Judicial Reform

 

 

I have not read the current Israeli government’s judicial reform program in detail. But the current process for selecting Israeli judges—basically self-selection by extant judges is truly awful. (Other nations that use judicial self-selection include India and Pakistan.) So I am inclined to think that nearly anything that allows the parliament, government/cabinet, or prime minister to control or influence that process is a plus.

 

The problem with the government’s selection of judges (as I have observed in the U.S. and Ireland) is that the candidates are chosen for two reasons. Everyone knows about the first reason: party loyalty / ideological commitment. The second reason is: judges are picked for being the better/best practitioners who know how to successfully negotiate the extant legal system. The problem with the latter is that what is often desperately needed is not judges who can negotiate the legal system, but judges with the energy and wisdom to lead major programs of institutional revision in order to reform the legal system. Sometimes what is needed is root and branch reform. Otherwise, you may end up with idiots savants managing an asylum, but calling it a court system. Or, to put it another way, you have experts expertly managing a slow-moving, opaque, expensive (vis-a-vis litigants and taxpayers), and otherwise failed judicial system.

 

Seth Barrett, ‘Some Thoughts on Judicial Reform,’ New Reform Club (Feb. 6, 2023, 9:41 AM), <https://reformclub.blogspot.com/2023/02/some-thoughts-on-judicial-reform.html>; 

 

Strange Coincidence: Re Doyle (High Court of Ireland, filed 1972, decided 1973)

I gave my equity and trusts students an assignment involving: Re Doyle (High Court of Ireland, Kenny J’s oral order was issued in open court on 15 February 1973, and his written final order was perfected on 27 April 1973) (unreported).* One of the barristers on the case was John Murray—later Attorney General (appointed, twice, by the Taoiseach, Charles Haughey), judge on the European Court of Justice (appointed by the government of Ireland), and finally, Justice, and then Chief Justice on the Supreme Court of Ireland. His obituary ran in last week’s newspapers. See The Irish Times, <https://irishtimes.com/obituaries/2023/01/28/john-murray-obituary-former-chief-justice-gave-lifetime-of-service-through-the-law/>; Independent, <https://independent.ie/irish-news/obituary-justice-john-l-murray-distinguished-former-chief-justice-and-attorney-general-known-for-his-laughter-compassion-friendship-and-wisdom-42317644.html>.

Seth Barrett Tillman, ‘Strange Coincidence: Re Doyle (High Court of Ireland, filed 1972, decided 1973),’ New Reform Club (Jan. 30, 2023, 3:40 AM), <https://reformclub.blogspot.com/2023/01/strange-coincidence.html>; 

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*Our knowledge of Re Doyle comes (almost entirely) from Justice Kenny’s extrajudicial writings. 

See, eg, J C W Wylie, A Casebook on Equity and Trusts in Ireland (2nd edn, Tottel Publishing Ltd 1998) 850 note 2 (citing “Re Doyle High Court, unrep, (1972 No 143 Sp)”); J C W Wylie, Irish Land Law (2nd edn, Professional Books Ltd 1986) 498, [9.072] (explaining that Re Blake “was, however, not followed by Kenny J. in Re Doyle, in which he held that, when a condition precedent attached to a gift is a violation of the donee’s constitutional rights in the Republic, the donee takes the benefit of the gift without complying with the condition”) (listing Justice Kenny as “consultant editor”); ibid note 26 (citing Re Doyle at “(1972) Unrep. (H.C., R.I.) (No. 143 Sp)”); J C W Wylie, Irish Land Law (3rd edn, Butterworths 1997) 554-55, [9.072] (explaining that Re Blake “was, however, not followed by Kenny J in Re Doyle, in which he held that, when a condition precedent attached to a gift is a violation of the donee’s constitutional rights in the Republic, the donee takes the benefit of the gift without complying with the condition”) (listing Justice Kenny as “consultant editor”); ibid 554 note 378 (citing Re Doyle at “Unrep, (HC, RI) [(]1972/143 Sp)”); J C W Wylie, Irish Land Law (4th edn, Bloomsbury Professional 2010) 615, [9.71] (same). 

Chief Justice Keane reports that Justice Kenny was a “consulting editor” of Professor Wylie’s Irish Land Law “at the time . . . [Kenny’s apparent] comment [on Re Doyle] appeared [and so] it must carry considerable weight.” Ronan Keane, Equity and the Law of Trusts in Ireland (3rd edn, Bloomsbury Professional 2017) 281, [14.14]; see also ibid [14.15] (“Kenny J, answering questions raised by the executor on a construction summons, held . . . .”); ibid 281 note 24 (citing Re Doyle at “(1972, unreported), HC, Kenny J.”); ibid 281 note 25 (citing Wylie’s 4th edition’s discussion of Re Doyle). 

[Professor] Hilary Biehler (formerly Delany), Equity and the Law of Trusts in Ireland (7th edn, Round Hall 2020) 502 note 9 (citing Wylie’s 4th edition’s discussion of Re Doyle). Apparently, there is no trace of Re Doyle in the court system itself, notwithstanding that this case was adjudicated by a court of record. See Irish Constitution, Article 34.3.1° (listing the High Court among other courts of record), <https://tinyurl.com/576rjmr4>; Irish Constitution, Article 34.3.2° (noting that the High Court’s “jurisdiction . . . shall extend to the question of the validity of any law having regard to the provisions of this [C]onstitution”). 

Available in Irish Newspapers and Professional Journals: 

‘Will Clause On Religion Rejected By Judge,’ The Irish Times (Dublin, 16 February 1973) 15; 

‘Religion not legal bar to will,’ Irish Independent (Dublin, 16 February 1973) 10; 

‘Religious test void in will,’ The Irish Press (Dublin, 16 February 1973) 12; 

‘Condition in will unconstitutional,’ Cork Examiner (Cork, 16 February 1973) 14; 

‘Stipulation on religion in will case,’ Evening Herald (Dublin, 15 February 1973) 6; and, 

‘Will clause on religion rejected by judge: New Ross man’s estate for daughter’ (March 1973) 67(3) Gazette of the Law Society Ireland 59; ibid 60 (identifying case as John Rochford v Bank of Ireland Trust Company Ltd). 

Later Texts where Re Doyle is discussed: 

Professor J C W Wylie, A Casebook on Equity and Trusts in Ireland (Abingdon, Oxon., 1st edn, Professional Books Ltd 1985) 410 (citing “Kenny J. in Re Doyle Unrep, (1972 No. 143 Sp.)”); 

J C W Wylie, Irish Land Law (London, 1st edn, Professional Books Ltd 1975) (listing Justice Kenny as “consultant editor”) 461, [9.072] (explaining that Re Blake “was, however, not followed by Kenny J. in Re Doyle, in which he held that, when a condition precedent attached to a gift is a violation of the donee’s constitutional rights in the Republic, the donee takes the benefit of the gift without complying with the condition”); ibid note 26 (citing Re Doyle at “(1972), Unrep. (H.C., R.I.) (No. 143 Sp)”); 

[Chief Justice] Ronan Keane, Equity and the Law of Trusts in the Republic of Ireland (London, 1st edn, Butterworths 1988) 196-197, [14.08]; 

[Professor] Hilary Delany (later Biehler), Equity and the Law of Trusts in Ireland (Dublin, 1st edn, Round Hall Sweet & Maxwell 1996) 311, 312, 315; 

H.C. is an abbreviation for High Court of Ireland.

Other Important Source where Re Doyle is reported: 

Case file in the Central Office of the High Court (including, Kenny J’s final order perfected on 27 April 1973)—personally visited Monday, 20 February 2023 (reviewed file, including the final order, which was expressly referenced in Keane’s treatise). 

-------------------------------------------------------------------

Seth Barrett Tillman, ‘Strange Coincidence: Re Doyle (High Court of Ireland, filed 1972, decided 1973),’ New Reform Club (Jan. 30, 2023, 3:40 AM), <https://reformclub.blogspot.com/2023/01/strange-coincidence.html>; 

A Gracious Article III Judge

After sending a copy of one of my recent publications to an Article III judge who I had criticized, the judge wrote back: 

“So fascinating—thank you for sending! For what it is worth, I often (and [I] did in [my recent published decision]) use the citation forms from Hart & Wechsler—see page ____ of the 7th edition. Perhaps consider adding Hart & Wechsler to your footnotes? When I err, I like to be in their company. And in any event, I am grateful for the education on this topic and [I] will cite your article the next time [the same issue] comes up.”

Seth Barrett Tillman, ‘A Gracious Article III Judge,’ New Reform Club (Jan. 26, 2023, 5:07 AM), <https://reformclub.blogspot.com/2023/01/a-gracious-article-iii-judge.html>;

Professor Laurence Tribe is Shocked! Shocked!!

 

Professor Laurence Tribe writes: “Right. The Justices evidently weren’t interviewed!” See <https://twitter.com/tribelaw/status/1616294504373387268>.

I responded: “It is simple. What positive rule of law forbids a Justice from releasing or authorizing the release of the purportedly ‘leaked’ materials? What federal law or enforceable rule would have been violated?” 

Peter Hurley replied with: “18 USC [Section] 2071, for one. Moreover, the court has broad authority to investigate contempt or obstruction of its processes. If a Justice undertook to influence the outcome of a proceeding by divulging information and lying about it, that is within the Court’s purview.” 

Tillman: I don’t think Section 2071 works. First, Section 2071 is limited to documents which are “filed or deposited” with any clerk or public officer. Draft opinions are internally generated documents. See United States v. Sater, No. 98 Civ. 1101, 2019 WL 3288389, at *2 n.3 (E.D.N.Y. July 22, 2019) (distinguishing, in a non-Section 2071 context, internal court documents such as “early, unpublished drafts of judicial opinions” from filed documents). Second, Section 2071 is limited to “conceal[ing], remov[ing], mutilat[ing], obliterat[ing], or destroy[ing] documents—I don’t know that that language extends to releasing an electronic copy of an original. Third, violations of Section 2071 are predicated on the defendant’s having had acted “unlawfully,” which would seem require a violation of some other statute, otherwise 2071 is circular in regard to what is “unlawful.” So your (Peter Hurley’s) referencing Section 2071 as the criminal violation involved in the “leak” appears insufficient. You need to put forward some other statute that precludes a Justice from releasing or authorizing the release of a draft opinion. 

Now, if the alleged “leak” or release of the draft Dobbs opinion involved some sort of bribe or a solicitation of an actual payment in money or other property, then that is an entirely different situation, and it would be a likely legal violation. But nothing like that has been alleged. 

You wrote: “If a Justice undertook to influence the outcome of a proceeding by divulging information and lying about it, that is within the Court’s purview [to investigate].” Your argument is circular. If a Justice undertook to influence an opinion by writing a journal article or giving a speech on a legal issue sub judice, that would be entirely legal. If a Justice—not under oath—denied that his motivation for giving such a speech was to influence current litigation and that denial was a lie, then there is no legal violation, and there is nothing to investigate. Although lying is not a good thing, not every lie is a crime or even sufficient to justify an investigation, with its concomitant use of government time and resources. Generally, the investigatory bodies of the legal system do not put people under oath, against their will, absent a credible allegation that some crime, tort, or other cognizable legal wrong is at issue. 

Again: If a Justice released or authorized the release of the draft Dobbs opinion, what federal crime is that? What cognizable legal violation would that be? 

As for your position that “the court has broad authority to investigate contempt or obstruction of its processes,” I think such language usually refers to a contempt in open court and to physically impeding a court officer from carrying out extant duties. What “contempt” in open court is involved here? Which court officer and what specific duties were physically impeded by the release of the draft Dobbs opinion? 

Turning arguably bad or unexpected conduct into a crime after-the-fact because no one thought to criminalize it before-the-fact violates ex post facto norms and, perhaps, the Ex Post Facto Clause. So again, I ask what is the possible federal crime which is being alleged on the facts now known to the public? And on what basis is that sufficient to investigate the Justices?

And if, after all this time, no federal crime, or tort, or other cognizable legal wrong can be credibly alleged, the better question to ask is what kind of society and legal system investigates people for behavior that is not criminal and not tortious? 

Seth

Seth Barrett Tillman, ‘Professor Laurence Tribe is Shocked! Shocked!!,’ New Reform Club (Jan. 20, 2023, 3:40 AM), <https://reformclub.blogspot.com/2023/01/professor-laurence-tribe-is-shocked.html>;

 

See also: Seth Barrett Tillman, ‘If you are a prosecutor or former prosecutor every wrong looks like a federal criminal offense,’ New Reform Club (May 5, 2022, 3:33 AM), <https://reformclub.blogspot.com/2022/05/if-you-are-prosecutor-or-former.html>; Seth Barrett Tillman, ‘Bob Bauer’s Free Speech Problem and Ours,’ New Reform Club (July 23, 2017, 10:36 AM), <http://tinyurl.com/y7ahouep>; Seth Barrett Tillman, ‘This Is What Is Wrong With The American Judiciary,’ New Reform Club (Mar. 16, 2017, 4:23 AM), <http://tinyurl.com/z4q9f8v>. 

Some Biden-related questions no one seems to be asking?

Were the Biden documents declassified? If ‘yes,’ by whose authority and what evidence (if any) is there that this authority was actually exercised?

Can President Biden ratify his past conduct by retroactively declassifying the documents?

Can the President pardon his own prior conduct, particularly where the conduct arises in connection with his former service in another administration? 

What (if any) non-statutory continuing (fiduciary) duties do former elected-officials, appointed-officers, and government employees-&-agents have involving confidential government communications? See Seth Barrett Tillman, Loyola University of Chicago Law School, Fourth Annual Constitutional Law Colloquium, Six Puzzles for Professor Akhil Amar 15 n.67 (Nov. 1, 2013), <https://ssrn.com/abstract=2173899>.

For the purposes of the Impeachment Clause (Article II, Section 4), and the allegations surrounding Biden’s VP duties, is President Biden a current office-holder or a former office-holder? 

And if President Biden is not a current office-holder for the the purpose of the Impeachment Clause ... Given that President Biden’s woes stem from a position which he formerly held, and that there was a break in his government service between his being VP and P, one asks: “Are former officers impeachable?”

Is there any statute of limitations defense for impeachable offenses? Should the statute of limitations during impeachment proceedings mimic the statutory statutory statute of limitations where the alleged impeachable offense is a federal criminal offense? (Tillman: my tentative answer is “yes.” See also Josh Blackman & Seth Barrett Tillman, ‘Can President Trump be Impeached and Removed on the Grounds of Incitement?,’ Reason—Volokh Conspiracy (Jan. 8, 2021, 3:57 AM), <https://tinyurl.com/y5vz3d6o>.)

Is there any implied statute of limitations arising from the Constitution itself? 

When (if at all) should Vice President Harris and the members of the cabinet begin to discuss the applicability of Amendment 25? Think “Corvette”.

What is the scope of statutory disqualification: 18 U.S.C. Section 2071? See Seth Barrett Tillman, ‘Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications,’ 5(1) Br. J. Am. Leg. Studies 95 (2016) (peer review), <https://ssrn.com/abstract=2679512>.

What is the scope of Senate-imposed disqualification arising in connection with impeachment proceedings? See Seth Barrett Tillman, ‘Originalism & The Scope of the Constitution’s Disqualification Clause,’ 33(1) Quinnipiac L. Rev. 59 (2014), <https://ssrn.com/abstract=2484377>. 

Can the U.S. Department of Justice investigate, indict, and prosecute, and can the federal courts try, convict, and sentence a sitting President for acts unrelated to his current term of government service? If the answer to any of these questions is ‘no,’ then is the relevant statute of limitations tolled until the President’s term ends (or until the President otherwise leaves his post)? 

Is anybody discussing the virtues of bringing back independent counsels? 

Seth Barrett Tillman, ‘Some Biden-related questions no one seems to be asking?,’ New Reform Club (Jan. 15, 2023, 4:55 AM), <https://reformclub.blogspot.com/2023/01/some-biden-related-questions-no-one.html>; 

Confidential Government Communications

 

 

Extract on confidential government communications from: Seth Barrett Tillman, Loyola University of Chicago Law School, Fourth Annual Constitutional Law Colloquium, Six Puzzles for Professor Akhil Amar (Nov. 1, 2013), <https://ssrn.com/abstract=2173899>:

One of my correspondents compared [President] Washington’s accepting these foreign gifts with his taking possession of state papers at the end of his second term. The two situations are not akin. The Constitution is silent with regard to state papers; it is not silent in regard to foreign gifts. Moreover, Washington had a strong claim to “his” papers. [Albeit,] [h]e had a continuing (fiduciary) duty to protect confidential communications. He could have believed that he was better situated to do so than his successor (who was not a party to those communications). Cf. Folsom v. Marsh, 9 F. Cas. 342, 347 (C.C.D. Mass. 1841) (No. 4,901) (Story, J.) (discussing confidentiality concerns in regard to the publication of former presidents’ and other state papers). See generally Title to Presidential Papers, 43 Op. Att’y Gen. 11 (1974) (Saxbe, Att’y Gen.).

Six Puzzles, at 15 n.67 (emphasis added).

Seth Barrett Tillman, Confidential Government Communications, New Reform Club (Jan. 15, 2023, 4:21 AM), <https://reformclub.blogspot.com/2023/01/confidential-government-communications.html>; 

A Twitter Exchange on “Insurrection”

My response:

Your proposed definition of “insurrection” is certainly one possibility. But I wonder if your proposed definition is overbroad?

Under your proposed definition of “insurrection,” in relation to the events involving the American Civil War and Ex parte Merryman in 1861, would not President Lincoln, Generals Winfield Scott, William Keim, and George Cadwalader, Colonels R.M. Lee and Samuel Yohe, and Lieutenant William Abel—all be guilty of insurrection—for preventing the federal courts from hearing habeas corpus applications? And from granting them? See Ex parte Merryman, 17 F. Cas. 144 (1861) (No. 9487) (Taney, C.J., in chambers), <https://tinyurl.com/ms6x7fnd>.

Under your proposed definition, if protesters in a U.S. Senate bathroom block, frustrate, or impede a senator from attending a floor vote, is that an insurrection?

Under your proposed definition, if protesters surround a federal courthouse and impede judges, other courthouse functionaries, and employees, litigants, and other members of the public from ingress and egress, is that an insurrection? Does it matter if some launch pyrotechnics against the building?

Under your proposed definition, if state judges and other court officers establish and put into effect a policy of secreting witnesses and aiding their leaving the state courthouse in order to frustrate their capture by federal immigration officers’ seeking to enforce federal law … is that an insurrection? 

I think under your proposed definition, all the defendants in each of my four “hypotheticals” would be in real danger of conviction for insurrection. That’s why I think your definition may be overbroad. 

If all that stands in the way of liability in each of these four situations is whether the expressive or political content of the defendants’ actions is valued by the prosecutor, then your definition is problematic. Indeed, each of my “hypotheticals” is based on real-world events. But I do not think any actual prosecutors, state or federal, sought to try any of the real-world defendants for insurrection or anything like insurrection. 

You might be better off (using the yardstick of customary rule-of-law norms) with more politically neutral theories of liability: trespass, trespass to chattel, conversion, theft, etc.

On the other hand, if the entire reason one is seeking a conviction for insurrection is to bring about a political disability, then the downside is that the prosecutor will put in motion a series of political and politicized proscriptions and counter-proscriptions. Something like Rome during and after the Second Triumvirate. See generally Josh Chafetz, Impeachment and Assassination, 95 Minn. L. Rev. 347 (2010); Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Clev. St. L. Rev. 285 (2013).

Now, going back to your definition ... I understand the position that the January-6th defendants were “a large group of persons whose purpose [was] to prevent the execution of the law.” But I don’t clearly understand what you mean by an “uprising against the authority of the government.” What precisely do these words mean? What does it mean to participate in an uprising against the “authority of the government,” as opposed to an uprising against the “government” itself?

I also have doubts that inchoate insurrection-related crimes (eg, attempt, conspiracy, solicitation), as opposed to insurrection itself, fall under the aegis of Section 3 of the Fourteenth Amendment. Is it sensible in regard to political disabilities to move beyond what the plain text permits?

I am so old I remember ... when progressives objected to temporary political disabilities imposed for felonious conduct after conviction in due course of law before a judge with life tenure and a unanimous jury based on evidence proving every element of a criminal offense beyond a reasonable doubt. Yet now, some think it proper to impose permanent political disabilities based on determinations by judges (including even administrative law judges lacking life tenure), absent juries, merely using the ‘more-likely-than-not’ civil standard. Under these conditions, I think the proscriptions and counter-proscriptions of the Second Triumvirate are about the best we can hope for. 

Seth Barrett Tillman, ‘A Twitter Exchange on “Insurrection,”’ New Reform Club (Jan. 3, 2023, 6:07 AM), <https://reformclub.blogspot.com/2023/01/an-exchange-on-insurrection.html>; 

Twitter: <https://twitter.com/SethBTillman/status/1610232869498281984>;

60 Minutes

 

Seth Barrett Tillman, ‘60 Minutes,’ New Reform Club (Jan. 2, 2023, 13:49 PM), <https://reformclub.blogspot.com/2023/01/60-minutes.html>; 

Tweet: <https://twitter.com/SethBTillman/status/1609882283770609664>;