The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Trump's Lawyers Cite, And Disagree with Blackman & Tillman On Whether The President Is Or Is Not An "Officer of the United States"
"To be clear, we mean no disrespect to either of these fine academics but their views on this matter are idiosyncratic."
On May 18, Seth Barrett Tillman and I published a post on Lawfare, titled Why the Manhattan DA's Trump Case Cannot Be Removed to Federal Court. We wrote that "there are good reasons to conclude that the elected president was not an 'officer of the United States,' so the case should stay in Manhattan criminal court." Two weeks later, Alvin Bragg, the District Attorney of New York (DANY) argued that Trump was not an "Officer of the United States," so the case should stay in Manhattan criminal court. We wrote about the filing here.
Yesterday, Trump's attorneys filed the opposition to DANY's motion to remand. Part I of the brief cites several Blackman/Tillman publications:
The President of the United States is an "officer . . . of the United States" under 28 U.S.C. § 1442(a)(1). DANY's argument to the contrary is unconvincing and the Court should reject it. Although DANY disappointingly never gives them any credit, DANY's argument is cribbed, at times nearly word-for-word, from a recent Lawfare blog post by Professors Blackman and Tillman. See Josh Blackman and Seth Barrett Tillman, Why the Manhattan DA's Trump Case Cannot Be Removed to Federal Court, Lawfare, May 18, 2023, available at https://www.lawfareblog.com/why-manhattan-das-trump-case-cannot-be-removed-federal-court. But while this argument—that elected officials, including the President, are not "officers of the United States"—has been advocated by these professors for some time,[FN1] to our knowledge it has never been accepted by any court.
[FN1]: See, e.g., Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution's Incompatibility Clause ("Our Next President"), 4 Duke Journal of Constitutional Law & Public Policy 107 (2009); Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part I: An Introduction, 61(3) S. TEX. L. REV. 309 (2021); Seth Barrett Tillman and Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62(4) S. TEX. L. REV. 349 (May 2023). To be clear, we mean no disrespect to either of these fine academics but their views on this matter are idiosyncratic, see, e.g., Our Next President, at 5-6 (collecting the contrary views of numerous scholars), and of limited use to this Court.
I am grateful for the citation. Moreover, I think this brief models how attorney can cite those they disagree with.
Going forward, the issue of whether the President is an "Officer of the United States" is squarely teed up. And the parties are squarely at odds on an important issue of federal law that affects the Executive Branch. The Department of Justice should weigh in.
I'll repeat what Seth and I wrote back in May:
Before ruling, the court should consider calling for the views of the Department of Justice. The executive branch has an institutional interest to represent the president's unique station in our constitutional framework.
Stay tuned for more.
