Law

Seth Barrett Tillman: Some Personal Reflections on the Recent Litigation involving Section 3 of the Fourteenth Amendment

by

Some Personal Reflections on the Recent Litigation involving Section 3 of the Fourteenth Amendment

From the Introduction:

What follows is not specifically an attempt to reargue the merits of disputes between my interlocutors and myself [which were debated during the recent Section 3 ballot-access Trump-related cases], but an attempt to explain my personal experience in attempting to debate a set of intellectual points—points which I had developed since circa 2007 and refined in cooperation with Professor Blackman since 2017. Although I make no claim to objectivity among competing views, I hope to show that traditional academic and professional norms remain worthy aspirational goals, even where unmet.

Looking back, this paper is not so much about Section 3 of Amendment XIV and recent ballot-access Trump-related litigation. Rather, it is more about the decline in civility and aspirational standards within the polity, the courts, and legal academia.

And From the Conclusion:

It is said that at the negotiations at Appomattox Courthouse—Lee and Grant were both frank and civil during the course of discussing the surrender of Lee’s Army of Northern Virginia. Afterwards, Grant sent food to Lee to feed his (and, then, their) nation’s former enemy soldiers. Celebrations for Grant’s soldiers came only later—not while Lee’s soldiers remained present. Again, in ending active hostilities, the first step towards national reconciliation was frank and civil discourse.

I do not think our present and future is or will be as difficult as was Grant and Lee’s. But we too have to think about national reconciliation. It seems to me that the first steps in that direction involve frank and civil discussion, absent hyperbole, and absent name calling. If federal judges, state judges, and legal academics are not up to that task, then that is just another institutional and cultural problem crying out for reform and renewal.

Likewise, our domestic law schools are supported by taxes, tuition, and donations. If universities and academics only further burden American society by casting aside our free speech traditions and actively engage in just another front in our culture wars, then wider society might very well choose to withhold support. Perhaps this process has already begun?

 

An important topic.

The Conspiracy of the Trump Prosecutions

by

Yet another thing here in the dying days of the Biden administration.

There has been a lot of ink spilled over the past few years regarding the Biden administration’s unprecedented lawfare campaign against Trump. However, we need to remember that it wasn’t just the Biden administration launching these attacks, but Democrats throughout the country

There was Alvin Bragg’s prosecution in Manhattan. There was Fani Willis’s prosecution in Fulton County. Bragg’s case secured some convictions, but it is doubtful those will survive on appeal. Willis’s case has largely collapsed over ethics.

Before we sweep those cases into the dustbin of history, we need to take another look at what the Democrats have been doing over the past two years. Specifically, the active coordination between the Biden administration and the local prosecutions of Trump constituted a larger conspiracy against one of key foundations of a republic governed by law.

The fact that the various prosecutions were historic is well-trodden ground, but we need to remind ourselves that we are dealing with the unprecedented prosecutions of not only a former president but the man who was running to unseat an incumbent of the same party as the local and federal prosecutors. When you attempt things like what the Democrats were doing, your case had better be clean and tight.

Those local cases were anything but clean and tight.

Read more

People of the State of New York v. Donald J. Trump

by

On May 30, 2024, Donald Trump was convicted of 34 felony counts of falsified business records that allegedly abetted crime(s) unstated in the March 30, 2023 indictment. The jury was instructed to choose between three candidates for the other crime; their choices were not disclosed in the conviction. During the course of the trial, legal experts have struggled to deduce the nature of the underlying crime. Manhattan District Attorney Alvin Bragg played his cards close to the vest; as CNN analyst and Bragg’s former colleague Elie Honig stated:

Inexcusably, the DA refused to specify what those unlawful means actually were — and the judge declined to force them to pony up — until right before closing arguments. So much for the constitutional obligation to provide notice to the defendant of the accusations against him in advance of trial. (This, folks, is what indictments are for.)

Pieces to this puzzle are scattered about the Internet address in bits and pieces. This is my attempt to pull those sources together to adequately outline the main issues of the case.

Read more

Thoughts on J6 Pardons and Investigations

by

I am in favor of a pardon for J6 protesters, but not all of them. Which ones? Those who posed no threat. Those not convicted or charged with assault or other violent offenses (with one possible exception – see next paragraph), or for inciting violent behavior (like John Earle Sullivan). Ray Epps still hasn’t been thoroughly investigated, so he should not receive a pardon.

The case of Rachel Powell must be reviewed carefully. She claims she broke a window to flee a dangerous situation created by an attack by Capitol defenders that had protesters pressed in a confined area. If there is a strong case for her self-defense argument, pardon her.

The pardon decision must reflect zero tolerance of violence other than justifiable self-defense. The pardon announcement must call attention to prosecutorial abuse, excessively lengthy pretrial detention, and pretrial prison conditions.

Now, on to J6 investigations. Here’s my not-necessarily-comprehensive to-do list.

A highly detailed sequence of events. If military history buffs can put together detailed videos of major battles pinpointing the positions of individual units at specific times, the same can be accomplished here. I want a series of maps in print or video format that show time and location of every single violent incident, whether fomented by the public- or private-sector, and other incidents of note (e.g. pipe bomb discoveries, Senate recess, the moment Capitol security started allowing entry into the building, Trump’s “go home” tweet, Jacob Chansley announcing said tweet), and that also show the location of key persons of interest at those times. This exercise should be valuable to various investigations, and will give the public a better sense of when and where rioting and other violence occurred. I suspect that many people imagine four solid hours of rioting, far more violence than actually occurred. I’m also curious to know how many people who heard the end of Trump’s speech entered the building. Given the walking distance, they would not have arrived yet when windows were being bashed in.

A request for private citizens to submit videos that have not yet been submitted. There may still be some videos out there that haven’t been tuned in out of fear of being railroaded by Biden’s DoJ.

The pipe bombs. Who planted them, and were they subjected to forensic analysis after the Feds exploded the devices? Since they were fitted with one-hour kitchen timers and placed many hours prior to discovery, the bombs either had a different trigger mechanism that wasn’t visible, or no trigger mechanism at all. The latter alternative calls into question whether the bombs even had explosives. They could have been filled with Clairol for all we know.

The use of tear gas and its possible role in inciting violence. Some tear gas rounds were fired deep into the peaceable section of the crowd, as witnessed by J. Michael Waller and documented in this video (first round visible at 1:02).

The decision to allow entry into the building. Who authorized it? At which entrances was entry allowed? I am vaguely aware of a claim that the rioting was mostly on one side of the building and allowed entry was on the other. I’d like some confirmation on that.

The shooting death of Ashli Babbitt.

The death of Rosanne Boyland.

The origins of the hoax that Brian Sicknick was beaten to death with a fire extinguisher.

The gallows prop. Who built it, and who decided it should not be torn down once it was up? People need to be fired over this.

All other conduct of Capitol defenders.

Prison conditions for J6 protesters in pretrial detention. Inspection teams should be ready to descend on the prison(s) two seconds after Trump takes the oath of office.

Prosecution of J6 defendants. One special concern is the decision to charge about 250 J6 defendants under an evidence tampering provision under Sarbanes-Oxley. How was this decision made? Did anyone in the loop doubt that the statute was genuinely relevant to those cases? Those convictions have since been shot down by SCOTUS. One has to imagine how someone could get the idea that a law concerned with addressing accounting shenanigans could be applied to protesters.

The J6 committee and Jack Smith. Obligatory mention. One issue I’d like to see settled: since the full committee never met, did it have subpoena authority? If not, the cases of those convicted of defying subpoenas should be appealed, not pardoned.

He Who Must Not Be Named

by

Now that Mark Zuckerberg has admitted to caving to government pressure to censor Facebook users’ remarks about COVID policy and to suppress the story about Hunter Biden’s laptop and its incriminating emails, maybe it would be a good idea to revisit the policy of Facebook, YouTube and others to ban the mere mention of the name Eric Ciaramella, the CIA analyst rumored to be the whistleblower involved in Trump’s first impeachment. The New York Times profiled the whistleblower without naming names, and a number of journalists found one guy who fit the description. For whatever reasons, various platforms insist that if someone is rumored to be a government whistleblower, the person must receive absolutely no public mention under any circumstances or in any context whatsoever.

Read more