On Could 18, Seth Barrett Tillman and I printed a submit on Lawfare, titled Why the Manhattan DA’s Trump Case Can’t Be Eliminated to Federal Court docket. We wrote that “there are good causes to conclude that the elected president was not an ‘officer of america,’ so the case ought to keep in Manhattan prison court docket.” Two weeks later, Alvin Bragg, the District Lawyer of New York (DANY) argued that Trump was not an “Officer of america,” so the case ought to keep in Manhattan prison court docket. We wrote in regards to the submitting right here.
Yesterday, Trump’s attorneys filed the opposition to DANY’s movement to remand. Half I of the temporary cites a number of Blackman/Tillman publications:
The President of america is an “officer . . . of america” underneath 28 U.S.C. § 1442(a)(1). DANY’s argument on the contrary is unconvincing and the Court docket ought to reject it. Though DANY disappointingly by no means offers them any credit score, DANY’s argument is cribbed, at occasions almost word-for-word, from a current Lawfare weblog submit by Professors Blackman and Tillman. See Josh Blackman and Seth Barrett Tillman, Why the Manhattan DA’s Trump Case Can’t Be Eliminated to Federal Court docket, Lawfare, Could 18, 2023, accessible at https://www.lawfareblog.com/why-manhattan-das-trump-case-cannot-be-removed-federal-court. However whereas this argument—that elected officers, together with the President, will not be “officers of america”—has been advocated by these professors for a while,[FN1] to our data it has by no means been accepted by any court docket.
[FN1]: See, e.g., Seth Barrett Tillman, Why Our Subsequent President Could Hold His or Her Senate Seat: A Conjecture on the Structure’s Incompatibility Clause (“Our Subsequent President”), 4 Duke Journal of Constitutional Legislation & Public Coverage 107 (2009); Seth Barrett Tillman & Josh Blackman, Places of work and Officers of the Structure, Half I: An Introduction, 61(3) S. TEX. L. REV. 309 (2021); Seth Barrett Tillman and Josh Blackman, Places of work and Officers of the Structure, Half III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62(4) S. TEX. L. REV. 349 (Could 2023). To be clear, we imply no disrespect to both of those high quality lecturers however their views on this matter are idiosyncratic, see, e.g., Our Subsequent President, at 5-6 (gathering the opposite views of quite a few students), and of restricted use to this Court docket.
I’m grateful for the quotation. Furthermore, I believe this temporary fashions how lawyer can cite these they disagree with.
Going ahead, the difficulty of whether or not the President is an “Officer of america” is squarely teed up. And the events are squarely at odds on an essential subject of federal legislation that impacts the Govt Department. The Division of Justice ought to weigh in.
I will repeat what Seth and I wrote again in Could:
Earlier than ruling, the court docket ought to contemplate calling for the views of the Division of Justice. The manager department has an institutional curiosity to symbolize the president’s distinctive station in our constitutional framework.
Keep tuned for extra.
