[This post is co-authored with Professor Seth Barrett Tillman]
The sequence of events over the past week could not have been scripted. On Thursday, September 7, former-federal judge, and former-Attorney General Michael Mukasey published an op-ed in the Wall Street Journal, contending that the President was not an “Officer of the United States” for purposes of Section 3. We had no clue this piece was coming, and we were pleasantly surprised to see that his thinking aligned with our own. At that point, 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 of Monday, September 11, and was posted to SSRN shortly after midnight. On the afternoon of Tuesday, September 12, Professor Steve Calabresi’s letter to the editor ran in the Wall Street Journal. Calabresi also concluded that the President is not an “Officer of the United States” for purposes of Section 3. When Steve had submitted his letter, he had not yet seen our new article on Section 3. And we had no clue Steve would publish that view in the WSJ. Here again we were pleasantly surprised.
After we saw Calabresi’s letter, our minds turned to Yale Law Professor Akhil Reed Amar. Amar and Calabresi are long-time friends, have taught a class together at Yale, regularly cite and respond to each other’s material, and are co-authors of a leading constitutional law treatise. We realized that Calabresi’s position was now in tension with Amar’s position. Nearly three decades 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 is covered by both phrases.
Then, on Wednesday, September 13, Amar released a 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 at some point after Thursday, September 7, and before Tuesday, September 12.) Amar criticizes Mukasey, as well as the amicus brief that Tillman and Blackman submitted in 2017 for the Emoluments Clauses litigation. We are pleased that after six years our amicus brief in district court litigation is known to the world.
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 roughly the 1:08:00 mark, 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 within brackets.)
- “And I was laughing, because I actually couldn’t resist because to even hear these formulations elicits laughter from me.” (7:31).
- “This was not ex-General Mukasey’s finest moment.” (1:06:40).
- “The Tillman-Blackman position, which I think is daft …” (1:10:04).
- “This one was just a brief by Tillman. Maybe Blackman wasn’t involved in the brief, but see brief for scholar 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 there is. He is the single most cited young scholar by the Supreme Court, Will Baude, Roberts clerk. Sai Prakash is the most cited the younger-ish scholar by the Supreme Court and he clerked for Thomas, these are very credible people you see who are really experts truthfully, and that’s less true of Professor Tillman. Truth be told, [Tillman] who is not cited by the Supreme Court and in the one case where a court really turns and discusses his work, body slams 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 on the merits, I’m going to demolish it. It’s embarrassing that someone so distinguished [as Mukasey] at the end of, you know, near the end of their career would say something like this and so prominent to place.” (1:18:13). [This Erev Rosh Hashanah, we wish General Mukasey a long and healthy life.]
- “This is very wrong. It’s silly. It’s so silly that we didn’t spend time on it in three hours with Baude and Paulsen because I moved beyond it because it seemed to me they were just pushing on an open door.” (1:22:11).
- “Truthfully, this is not true of all great lawyers and judges who aren’t scholars they have sometimes underlings write stuff for them. Judges have law clerks, lawyers have associates, great lawyers have staff attorneys who do this. So it’s possible that General Mukasey did all this himself, but it’s possible that some underling, and he offered his name he [is] still responsible for it.” (1:23:06).
- “But when a scholar says something, typically, that scholar did it himself, herself is responsible for it. And especially if that scholar is building on a lifetime of scholarship on, let’s say, the Constitution, in general, I’m going 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 the one side, Akhil and Vik[ram] have taken this position back in 1996, an article on presidential succession. And on the other side, we do have a scholar Seth Barrett Tillman, he has a track record of citation or non citation, you can judge it for yourself. I don’t think it’s a very distinguished record truthfully. And, and you have General Mukasey, but I think this is not his finest hour.” (1:23:29). [Query: What is a record of non-citation?]
- “But what I’m saying is that he’s [Mukasey] written no article that I know of in which he elaborates all this. I know where it’s coming from. It’s coming from Seth Barrett Tillman, which has been properly body slammed by Sai Prakash and judges and Baude and Paulsen so and Tribe himself was involved in that Emoluments Clause litigation on the other side, and I hold I don’t always agree with Larry Tribe, I don’t always agree with 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 that you’ve heard from on our podcast.” (1:25:31).
If we may offer a shameless plug, on September 28, Amar is giving a lecture on the importance of civil discourse at Baylor Law School.
Amar likely thinks that his podcast is consistent with his views on the importance of civil discourse. He describes a scholarly exchange like a cage match–”body slam”! He repeated, over and over again, that authors he agrees with clerked on the Supreme Court, but Tillman did not. And he stated that Tillman is less credible than those former Supreme Court clerks. He called positions he disagrees with “daft,” “stupid,” “embarrassing,” “silly,” and so on. He accuses Tillman of improperly leading astray a former Attorney General–almost like Rasputin. On the basis of no information, Amar accuses Mukasey of using an “underling” ghostwriter, or lifting ideas from Tillman without attribution, or both. Mukasey came to these conclusions on his own. We know this because after his op-ed was published, we initiated a correspondence with him. Furthermore, the fact that Mukasey came to these conclusions on his own demonstrates the strength of the ideas we have put forward. Moreover, we don’t proclaim, nor have we ever proclaimed, that the ideas we have presented originate with us. We in turn rely on older sources, including Alexander Hamilton, Justice Story, and many others.
To be clear, we have no objection with Amar’s language. Indeed, we applaud his willingness to be direct and clear and to embrace being controversial. This is civility as Amar sees things.
We add a note of caution. Amar is a full professor with tenure at a law school with a sizable endowment. For him, there are no downside consequences to using strong language. In fact, there is only an upside for him personally. We worry that some law students, and perhaps others, who are young, and less sophisticated than Amar, might emulate this behavior. Later in life, they may discover that future would-be employers, including government employers, will check would-be employees’ social media footprints. Many employers will shy away from candidates who use such language. As a result, these people may find themselves disadvantaged for doing what Amar has done. We hope we are wrong about this, but we fear that we are right.
Today is only Thursday. What Section 3 shoe will drop next? We have been to this rodeo before. People who have disagreed with us have later walked back their comments in one way or another. This happened on several occasions. There are many such people we could cite. One of them is Professor Laurence Tribe. We single out Tribe here only because Amar mentions Tribe in his podcast.
— Laurence Tribe ???????? ⚖️ (@tribelaw) November 22, 2016
It is never too late to reconsider 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’s what Profesor Calabresi did this week. We make no prediction whether Professor Amar will follow Professor Tribe or Professor Calabresi’s example. But we are hopeful.
We have our own views with regard to how intellectual debate on legal issues should take place. Circa 2008, when Tillman first began to publish on this topic: i.e., the scope of the Constitution’s “office”- and “officer”-language, he actively sought out and solicited responses from Professors Calabresi, Prakash, Zephyr Teachout, and others. That’s the actual origin of the Prakash article that Professor Amar favorably cites. When we have cited to our views, we regularly also cite to theirs–so that our readers can see all sides represented by their best proponents. We notice that on Professor Amar’s website, he does not follow this practice. He only links to articles supporting the views he believes to be correct. We don’t say that he is wrong to do so. We only point out that this is his practice. You must decide for yourself what is the better practice.
Professor Amar, who said the Tillman-Blackman position is inconsistent with what Hamilton thought (1:13:24), would be well-served 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 Review (1, 2, 3, 4), as well as our article in the NYU Journal of Law & Liberty. We look forward to the Amar podcast that addresses our daft article–sorry, that should be draft article. How embarrassing.