[This post is co-authored with Professor Seth Barrett Tillman]
The sequence of events of the past week could not have been scripted. On Thursday, September 7, former federal judge and former Attorney General Michael Mukasey published a op-ed in the Wall Street Journal, claiming that the president was not an “officer of the United States” within the meaning of Section 3. We had no idea this piece was coming, and we were pleasantly surprised to see that his thinking matched ours. At that time, we were nearing completion of our draft article on Section 3 of the Fourteenth Amendment. We added a new footnote referencing Mukasey’s op-ed, but otherwise we planned to spend the next few days finalizing our draft article. The document was finalized late in the evening Monday September 11and wash Posted to SSRN shortly after midnight. On the afternoon of Tuesday September 12thProfessor Steve Calabresi’s letter to the editor was in the Wall Street Journal. Calabresi also concluded that the president is not an “officer of the United States.” purposes of Section 3. When Steve submitted his letter, he had not yet seen our new article on Chapter 3. And we had no idea that Steve would publish that vision in the WJ. Here too we were pleasantly surprised.
After seeing Calabresi’s letter, our thoughts turned to Yale Law Professor Akhil Reed Amar. Amar and Calabresi are longtime friends, having taught together at Yale, frequently citing and commenting on each other’s material, and are co-authors of a leading treatise on constitutional law. We realized that Calabresi’s position was now at odds with Amar’s. Almost thirty years ago, Vikram and Akhil Amar argued that there is no difference between “Officers of the United States” and “Office”.[s] . . . under the United States,” and the president falls under both phrases.
Then, on Wednesday September 13Amar released one new podcast about Section 3. The podcast only references Mukasey’s op-ed. It does not address the Blackman-Tillman article, or Calabresi’s letter to the editor. (We suspect it was recorded sometime after Thursday, September 7 and before Tuesday, September 12.) Amar criticizes Mukasey, as well as the amicus brief Tillman and Blackman filed in 2017 for the emoluments clause lawsuit. We are pleased that after six years our amicus brief in the district court proceedings is known worldwide.
Today is Thursday September 14. And now all these threads are starting to come together in unexpected ways.
We encourage you to listen to Amar’s podcast where he is interviewed by Andy Lipka. In particular, jump to about 1:08:00, where he spends 20 minutes talking about Mukasey and the Tillman-Blackman position. We commend Amar for stating clearly and directly what he thinks about Mukasey and our position. Here are a few highlights, with timestamps. (We add our comments in italics in brackets.)
- “And I was laughingbecause I actually couldn’t resist, because even hearing these formulations is tempting laughter from me.” (7:31).
- “This was not from ex-General Mukasey happiest moment.” (1:06:40).
- “The Tillman-Blackman position, which is what I think it is crazy …” (1:10:04).
- “This was just an order from Tillman. Perhaps Blackman was not involved in the assignment, but see the assignment for scientist Seth Barrett Tillman.’ (1:12:14). [If you check the front cover of the brief, and the signature block, Blackman’s name was listed as counsel.]
- On the Tillman-Blackman position: “I actually didn’t think it was worth the audience’s time. I thought it was such a ridiculous point.” [Here, Amar was referring to his two earlier podcasts in which he interviewed Professors Will Baude and Michael Stokes Paulsen.]
- “Will Baude clerked for Chief Justice John Roberts and is among the most distinguished scholars alive. He is the most cited young scholar by Supreme Court Justice Will Baude, clerk of Roberts. Sai Prakash is the most cited younger scholar by the Supreme Court. the Supreme Court and he was a law clerk for Thomas, these are very credible people who are truthfully real experts, and this is less true of Professor Tillman. Honestly, [Tillman] Who is not cited by the Supreme Court and in the one case where a court actually turns around and discusses its work, body hits him.” (1:16:26). [We agree that Baude and Prakash are among the most distinguished legal scholars in the United States.]
- ‘Let me be clear: this is a genuinely stupid argument about the merits, I’m going to demolish it. Are embarrassing that someone is so distinctive [as Mukasey] at the end of, you know, towards the end of their career would say something like this and so prominently in the place.” (1:18:13). [This Erev Rosh Hashanah, we wish General Mukasey a long and healthy life.]
- “This is bad wrong. Are crazy. It’s so crazy that we didn’t spend three hours on it with Baude and Paulsen, because I went over it because it seemed to me that they were just pushing against an open door.” (1:22:11).
- “Frankly, this does not apply to all great lawyers and judges who are not scholars. Sometimes there are subordinates who write things for them. Judges have clerks, attorneys have associates, great attorneys have staff attorneys who do this. So it’s possible that General Mukasey did all this himself, but it’s possible that some do too subordinateand he offered his name [is] still responsible for it.” (1:23:06).
- “But when a scholar says something, that scholar has generally done it himself, but is responsible for it. And especially if that scholar is building on a lifelong scholarly knowledge of, say, the Constitution, in general, I’m going to to give more benefit of the doubt to the scholar, and they have two scholars like Sai Prakash, and Will Baude and Mike Paulsen and Larry Tribe. On one side Akhil and Vik[ram] have already taken this position in 1996, an article about presidential succession. And on the other side, we have a scholar Seth Barrett Tillman, he has a track record of citation or non-citation, you can judge for yourself. To be honest, I don’t think it’s a very special record. And you have General Mukasey, but I don’t think this is his finest hour.” (1:23:29). [Query: What is a record of non-citation?]
- “But what I’m saying is that he is [Mukasey] has not, as far as I know, written an article detailing all this. I know where it comes from. It comes from Seth Barrett Tillman, who is appropriately body slammed by Sai Prakash and judges and Baude and Paulsen so and Tribe itself were involved in the Emoluments Clause lawsuit on the other hand, and I am of the opinion that I do not always agree with Larry Tribe, I do not always agree with Sai Prakash or Will Baude, our audience has heard that, but these are the serious people. That’s why these are the serious people you heard from on our podcast.” (1:25:31).
If we may give a shameless plug: on September 28, Amar will give a lecture on the importance of civil discourse at Baylor Law School.
Amar probably thinks his podcast is consistent with his views on the importance of civil discourse. He describes a scientific exchange as a cage match: ‘body slam’! He repeated again and again that authors with whom he agreed were clerks at the Supreme Court, but Tillman was not. And he stated that Tillman is less credible than those former Supreme Court clerks. He called positions he disagreed with “foolish,” “stupid,” “shameful,” “foolish,” and so on. He accuses Tillman of inappropriately misleading a former attorney general, almost like Rasputin. In the absence of information, Amar accuses Mukasey of using a “subordinate” ghostwriter, or taking ideas from Tillman without attribution, or both. Mukasey came to these conclusions himself. We know this because we started a correspondence with him after his op-ed was published. Furthermore, the fact that Mukasey came to these conclusions only shows the power of the ideas we put forward. Furthermore, we do not and have never claimed that the ideas we have presented are our own. We, in turn, rely on older sources, including Alexander Hamilton, Justice Story, and many others.
To be clear: we have no objection to Amar’s language. We applaud his willingness to be direct and clear and to be controversial. This is politeness as Amar sees things.
We add a warning. Amar is a tenured professor at a law school with a significant endowment. For him, there are no negative consequences from using foul language. Actually, there is only an advantage for him personally. We worry that some law students, and perhaps others, who are young and less educated than Amar, might imitate this behavior. Later in life, they may discover that future potential employers, including government employers, will monitor the social media footprints of prospective employees. Many employers will avoid candidates who use such language. As a result, these people may find themselves at a disadvantage for doing what Amar did. We hope we are wrong about this, but we fear we are right.
Today is only Thursday. Which Section 3 shoe will release next? We have been to this rodeo before. People who disagreed with us later retracted their comments in one way or another. This happened several times. There are many such people we could mention. One of them is Professor Laurence Tribe. We only mention Tribe here because Amar mentions Tribe in his podcast.
Must apologize: turns out scholar @SethBTillman makes that argument carefully. He’s not a lunatic, but I don’t find the argument convincing. https://t.co/EU7YVuWCRK
– Laurence Tribe ???????? ⚖️ (@tribelaw) November 22, 2016
It’s never too late to rethink things. It is a good thing to reopen intellectual issues from time to time. And that’s what Professor Tribe did in 2016. And that is what Professor Calabresi did this week. We do not predict whether Professor Amar will follow the example of Professor Tribe or Professor Calabresi. But we are hopeful.
We have our own views on how intellectual debates on legal issues should take place. Around 2008, when Tillman first began publishing on this topic: that is, the scope of the Constitution’s “office” and “officer” language, he actively sought answers from professors Calabresi, Prakash, Zephyr Teachout et al. That is the real origin of the Prakash article that Professor Amar positively quotes. When we have stated our positions, we regularly quote theirs as well, so that our readers can see that all parties are represented by their best advocates. We notice that on Professor Amar’s website he does not follow this practice. He only links to articles that support the views he believes are correct. We are not saying he is wrong about that. We merely point out that this is so are excercise. You must decide for yourself what the best practice is.
Professor Amar, who said that the Tillman-Blackman position is inconsistent with what Hamilton thought (1:13:24), would do well to check what Hamilton actually wrote. For a good place to start, see parts one through four of our ten-part series in the South Texas Law Overview (1, 2, 3, 4), as well as ours article in the NEW Journal for Law and Freedom. We’re looking forward to the Amar podcast covering our crazy article – sorry, it should be provisional version article. How embarrassing.