Going Mainstream

Many of the legal theories that you have advanced over the years ended up being in support of Trump. Was that something that you looked at as an interesting happenstance, or were you indifferent to that?
At the beginning, I was largely indifferent. Later on, I was more vocal and avid. I don’t think Trump and his people during his first administration were entirely blameless and perfect, but I do think that the justice system, the civil service and the impeachment process—especially the first impeachment—were weaponized against him in a way that should not have happened. To the extent that anything I might have said, written or done might have negated part of that, I’m not ashamed to have been involved in those efforts.
I would add that I was never part of Trump’s legal team, and my contacts with its members were never more than cordial.

So you don’t think that the impeachments had any merit.
The first Trump impeachment was a total farce. The things he was accused of were just everyday politics, and the legal system was weaponized against him. The give and take in everyday democratic politics, the bargaining and compromise cannot simply be recharacterized as bribery or extortion. Yet that is what happened to Trump. Moreover, the manufacturing of evidence to obtain a warrant to spy on the president of the United States shows that it was not just a one-off. There was a substantial segment of American society who were unhappy with democratic election results under the established rules, and they were going to use undemocratic means to displace an elected president. To do so, they were willing to criminalize normal democratic politics. To the extent that I might have added something to the balance, but going the other way, I was proud of that.
Initially, that was not my point at all. I was just expressing to the court what I believed would be a helpful argument with regard to the Foreign Emoluments Clause. I also expressed my views in regard to a sister clause called the Presidential Emoluments Clause (sometimes called the Domestic Emoluments Clause). That is a separate clause that applies only to the president.

You seem passionate about what’s going on in America.
The America I grew up in is not exactly there anymore, and that troubles me greatly. I say that both in terms of the way politics is done, as well as with regard to the physical features of the New York State I grew up in. It is unrecognizable in many ways. I’m not saying that every one of those changes is bad, but it is something I think about a lot, especially when I return every year or two to the United States.
When one reaches a certain age, one is going to see changes in society. I don’t know that we are ever going to get back to a legal system that is less politicized and weaponized than it is now. I certainly hope that we do. But there is every indication that if the only response to weaponization by one side is counter-weaponization—even if rationalized to incentivize the other side not to do so again—then we might never get back to anything approximating the aspirational goal of neutrality. I hope we can get back to that norm, but it might be one of those things that we will just have to learn to live without.

Well, sometimes presidents do commit illegalities.
Every administration is going to look back at the alleged wrongs of the prior administration as illegality. Not every mistake and not every policy misjudgment is illegality. As a young adult, I don’t remember our political system being weaponized in this way. Maybe that is because I was very young during Nixon, who certainly made grievous errors.
You might remember that there was a big imbroglio over the leak of the Dobbs Supreme Court decision. Almost immediately, you saw people in the media, including the right-of-center media, talking in the language of criminality—that someone had committed a crime and ought to be prosecuted.

Why do you think that is?
The problem is that a lot of the people in the media today are former state and federal prosecutors. When you are a former prosecutor and the only thing you know is to prosecute people, it seems that more than a few often forget that there are things that are just bad but are not crimes. A bad thing can happen—a bad thing can be done—but that doesn’t mean that anyone committed a crime, and we don’t prosecute people just because they did something bad. This is one of the basic lessons that seems to be dying from our society. And by the way, I am a law-and-order person.

In your opinion, why was the Dobbs decision leaked?
The Dobbs decision could have been leaked accidentally or inadvertently; someone might have taken it home to read and review, and then left it on the train by mistake, and from there it was carried over to someone in the media.
When I worked in Washington as a private practitioner, I saw Supreme Court clerks on the Metro reading confidential Supreme Court documents. I was older than most of these people because I came to law a little later, and I went up to some of them and said, “I’m not telling you that you did anything wrong, but I think you should put those documents away.” Now, if that can happen, people can mislay a document too. Alternatively, it could have been dropped in the wrong disposal bin in the Supreme Court building while still being drafted. Instead of having been dropped in a bin that leads to automatic shredding, it was dropped in another bin, and from there, some street person or Court watcher might have found it. All that would have been entirely legal.
I will also suggest another possibility: The Dobbs draft was not leaked; rather, its release may have been authorized. A Justice may have said to one of his clerks: “I’m unhappy with the way this draft is developing—I’m unhappy with ill-informed reports in the media predicting our decision and its reasoning—I’m going to tell one of my clerks that he has my permission to give it to a journalist.” That might be a very egregious thing for a Justice of the Supreme Court to do, and it might be daring for a clerk to follow such guidance, but I don’t know of any rule or law against such behavior. I don’t know that you can prosecute a Justice or judge for leaking a draft opinion from his own court.
The very fact that the Supreme Court’s investigators and the US attorney for the District of Columbia never caught (as far as we know) or prosecuted anyone for the Dobbs leak is consistent with the possibility that the leak was authorized by one of the Justices. As a matter of fact, not so long ago, there was an influential federal trial court judge from New York who used to do something like this. From time to time, he would publish such his drafts as an opinion and proceed to say something along the lines of: “This is a tentative view of mine.” By publishing it, he placed his views in the public eye, and the parties were better able to think in terms of settlement rather than waiting until the end of the trial. Other judges do something like this by holding hearings and opining on their preliminary thoughts in open court. No one has ever thought such conduct wrongful, much less criminal.

Although there is no impeachment on the horizon, many feel that we are heading toward a “constitutional crisis” with the Trump administration.
That term was used by the media on many, perhaps most, days during Trump 45, and it (or similar language) was used by more than a few Republicans during Biden’s term. But not everything is a constitutional crisis. You will recognize that we are in a crisis when the president will put himself in opposition to the courts: that is, when the president declares that he will not obey a judicial order directed against him personally, or where the president directly orders his subordinates to defy a judicial order directed against those subordinates. But nothing like that has ever happened in US history as far as I know.
There are two instances where that purportedly happened, but both of them are myths. One of them is President Jackson’s purportedly resisting the courts with regard to the displacement of the Cherokee. This story is a myth. Jackson did not disobey the courts or direct others to do so.
The other instance is a case from the first days of the American Civil War: Ex parte Merryman (1861). That narrative alleges that Lincoln resisted an order issued by Chief Justice Roger Taney. But this narrative is also a myth. In 2016, I wrote an article illustrating the problems with the Lincoln-defied-Taney narrative. My own view is that my 2016 article is my most significant contribution to academic scholarship. But it is hardly the stuff of today’s news and politics—few outside Civil War, military and wider US legal history are interested. I think I have won over most academics, in law and history, to my point of view. The most prominent exception remains Professor John Yoo. I remain hopeful that he will eventually see things my way.

You can talk about that contribution now.
The old scholarship said that Lincoln defied the courts, or, occasionally, that scholarship would say that Lincoln ignored the courts. What I tried to show is that Lincoln did not defy or ignore the courts. That is just a misreading of what happened. In 1861, the US Army seized John Merryman, then a member of the Maryland state militia. There were allegations that Merryman and others had destroyed bridges in Maryland that were needed to move US troops through Maryland to Washington, DC, which was (believed to be) threatened by invasion by the Confederacy. Merryman was detained in an army fort in Baltimore. There were no formal legal charges; there was no indictment; there was no preliminary hearing before a neutral magistrate authorizing arrest by civilian authorities in due course of established law. The army jailed a US citizen (albeit a member of the organized state militia) absent customary legal processes.
Unsurprisingly, Merryman sought a writ of habeas corpus ordering his release. His lawyers sought the writ from Chief Justice Taney. The defendant in that case was the military district’s commanding officer, General Cadwaladr. The case was heard by Chief Justice Taney, in Maryland, with Taney sitting alone while on circuit. Ex parte Merryman was not a US Supreme Court case. If Taney had ordered Merryman’s release, that order would have run against the defendant, General Cadwaladr, and not against Lincoln. So Lincoln was in no position to defy any such order, because he was not a defendant in the action. Moreover, I wrote, “If Taney had ordered Merryman’s release.” The old narrative assumed that there was such an order. In fact, Taney never issued an order commanding anyone to release John Merryman. So again, it makes no sense to say that Lincoln defied or ignored a federal judicial order because no such order was ever issued. All Taney did was issue an opinion (not an order), and he left the issue of how to comply (if at all) entirely with President Lincoln. Not only did Lincoln not defy an order, but there was no way for him to do so.
Why the myth? It makes a great story—it makes a great narrative—a showdown—a titanic legal battle—another front in the opening days of the American Civil War. On the one side, there is the aged, dedicated, wily and (as the author of Dred Scott) widely despised chief justice who is defending civil liberties in war time. On the other side, there is the popularly elected president, a small “d” democrat from the Old Northwest, newly come to the capital, a man who grew up on the frontier now intent on saving the Union from traitors and the slave power’s coastal elite. And then, caught between North and South, between Lincoln and Taney, between hammer and anvil, was John Merryman: not quite loyal and not quite a traitor—not a saint and not a terrorist. Was Merryman guilty of any crime? We will never know: Although he was later indicted for a variety of federal crimes, he was never tried and, as such, never convicted.

It’s a very interesting misreading though.
It’s a misreading that is full of myths by showing the titanic clash between the virtuous president and the far less than popular chief justice during the Civil War, but that’s not really what happened. I’m not saying that there is not an element of insight to that narrative, but the old, dominant narrative is more wrong than right.
My other major scholarly contribution is fairly recent; I published it (with my regular coauthor, Professor Blackman) in relation to and during the Trump-47 ballot-access Amendment XIV, Section 3 litigation. Although the US Supreme Court did not adopt the position I put forward in that case, the Court did adopt my position in a subsequent case decided later that year. One of the perennial questions that inhabits the federal courts is in what circumstances can a private party seek relief against the government, and what is the scope of the relief that a private party can seek? That is, when do you get to sue the government, and what can you sue the government for?

In other words, when can government officials be held legally responsible for their actions.
That’s mostly right. I’m not asking when a state can sue the federal government or vice versa. I’m not asking when the Department of Justice can sue another arm of the federal government or when it can prosecute federal or state officers or members of Congress. Rather, my position goes to private party suits against the government. And when a private party sues, what sort of relief can be sought? Everyone agrees that when Congress passes a statute setting out the terms of suing the government and granting relief, then a person can avail himself of that process and that relief. But the more difficult question is what if a person is grievously injured or at least believes he is by government conduct, and Congress has not provided a statute. This problem is particularly acute when the plaintiff can characterize his claim as a violation of the Bill of Rights. Where there is no federal statute, can a private party sue the government and its officers? And if “yes,” what relief can the private party obtain? As I said, this issue is a perennial one in the federal courts. And the caselaw on this issue is hardly clear and consistent.

What is your position?
My coauthor and I made the argument in 2023 that if you want to use the Bill of Rights as a defense, you don’t need a statute. You can always use the Constitution as a defense when the government is prosecuting or suing you. However, if you want to sue the government for affirmative relief—as opposed to negative relief—then you need a statute. And if you don’t have a statute, you are basically out of luck. Now, there are a few exceptions to that, but the general rule is that to get affirmative relief from the government, such as money damages or a positive injunction that orders the government (or its officers) to do something, then you need a federal statute.
My coauthor and I placed that argument in the academic literature in September 2023, and we repeated the various Trump-47 ballot-access Amendment XIV, Section 3 cases. It was not adopted by the Supreme Court in Trump v. Anderson, where we pushed that argument in our amicus brief. But it was adopted by the Supreme Court in April 2024 in DeVillier v. Texas. To be sure, I don’t know if, in DeVillier, the Supreme Court reached that conclusion independently or if the Court’s members came to that conclusion via one of my coauthored publications or briefs. It is certainly an important point, which will have consequences for litigation and, perhaps, legislation in the future. In 1971, in Bivens v. Six Unknown Named Agents, the Supreme Court established a doctrine permitting private individuals to sue federal officers in limited circumstances. The doctrine had no statutory basis. Given the Supreme Court’s decision in DeVillier, the doctrine established in Bivens is now on life support.

What do you think is the unifying factor in the various things you have written on?
That is a question that I’m not well-positioned to opine on. When I have a new idea, I feel lucky that I have stumbled across something interesting. Or sometimes, it can be something I have been mulling over for years, and all of a sudden I’m able to write it down. But I don’t know that most (or even many) of my ideas really link up. Over the last few years, I’ve written a great deal on one issue. Unfortunately, my reputation seems to be tied to that issue, but that is largely because it relates to Trump, not because that is what I see as the most important thing I have written among my corpus of publications.

You’ve come, perhaps accidentally, to the defense of Donald Trump twice, correct?
It depends on how you count such things. I have written, actually coauthored, 25 or more briefs that have aligned with his interests, but I would not say that I’m defending him. He has his own lawyers defending him. When I make representations to the court, it is as a friend of the court, and usually my arguments align with his. That’s not to say they are the same arguments; it’s just that our separate and different arguments end up working toward the same result. There have been one or two instances where my arguments have been contrary or at least orthogonal to what the president was arguing. And on more than a few occasions, where Trump’s attorneys had an opportunity to adopt my positions, they chose not to do so.
I would go further than that. In some of the lawsuits against Trump, he was represented by two sets of lawyers. One set of lawyers were Department of Justice lawyers representing President Trump—qua president. Another set of lawyers were Trump’s personal counsel representing Trump the individual. These two sets of lawyers were not always making the same arguments, so it’s hardly surprising that they did not always agree with what I had to say. They didn’t agree with one another, so why should they agree with me?

I guess I’m only aware of two of the arguments you have made in support of Trump as a friend of the court.
When you say arguments, you have to understand that it depends what you count. Trump has been involved in many court cases at different levels of the judicial system, and I filed separate briefs in many of them. So even if I made the same arguments, I have involved myself in the judicial process in different courts and at different levels of the judicial system multiple times. Arguments that I presented to the public as theoretical and abstract for the first time circa 2008 were subsequently defended by historical finds that were consistent with what I had argued. So when you say I made arguments, it depends on what you mean by an “argument.”

One of the principal points that I’ve seen was the argument about who is considered an officer of the United States according to the US Constitution. You maintain that the president isn’t included.
Yes. I have argued that the phrase “officer of the United States” is a defined term in the Constitution—the Constitution announces what it means. This is not uncommon: many statutes, contracts and other legal documents use terms that are defined within the four corners of the document itself. The phrase “office under the United States” is another phrase used in the Constitution. That is not a defined term; rather, it is a legal term of art whose meaning can be gleaned from contemporaneous legal documents using the same or similar language. When you say “officer of the United States,” I want to be clear that we are talking about that specific phrase as used in the Constitution. That phrase has a meaning in the Constitution that is to some extent distinct from how it was and is used in popular usage. I also think that there is other “office” and “officer” language in the Constitution that is textually distinct from both “officer of the United States” and “office under the United States.” That was my first and primary contribution to Trump-related post-2016 litigation. However, I have been continuously writing on this subject since circa 2008, if not as early as 2007.

What was the dominant view?
Prior to 2007, the dominant view was that the Constitution is this sort of vague mishmash that was cobbled together by people who were not all that concerned about linguistic and textual consistency across the original Constitution’s text. In other words, the phrases “office under the United States” and “officer of the United States” had no actual meaning, and the meaning of such language even varied across provisions using the same language. Part of the reason many thought this was that no one knew what these different phrases meant, and more importantly, no one made substantial efforts to search for or determine these phrases’ meaning. It was just thought that they all basically meant the same thing. There was no real discussion or literature, except from an occasional author who would have a comment in passing. My first contribution was to say that there is an issue here, and then to suggest solutions to the issue of how these different phrases were understood circa 1788.
To be clear, though, there has been tremendous pushback against my point of view. Most of the people, starting in 2008, who looked at my views have not come around. Some have. Quite a few have said something along the lines: “It is a reasonable view within the spectrum of views that are now out there, and we do not have to decide if this view is correct, because the Supreme Court has not opined on it. Until the Supreme Court has a case for which it absolutely must opine on this issue, there is no reason to decide whether Tillman is right or wrong.” My regular coauthor Josh Blackman agrees with me, but our view is hardly the dominant position.

But your point of view is that “officer of the United States” does not include the president.
My view is that, as used in the Constitution—that is the original Constitution of 1788—”officer of the United States” refers to positions that are in the executive branch and judicial branch that are filled through the process of appointment, not positions that are filled through elections. Elected officials are excluded from that category. So the president is excluded, as well as the vice president, as well as members of Congress.
There’s a related term, “office under the United States.” Every position that is an “officer of the United States” is also an “office under the United States.” The latter phrase also includes appointed positions in the legislative branch, such as the clerk of the House and the secretary of the Senate. The phrase “office under the United States” is a wider category than “officer of the United States.” That was among my first academic contributions to what would be at issue in Trump-45-related litigation and the more recent Trump-47 ballot-access Amendment XIV, Section 3 litigation. I have stuck to that position constantly, like the North Star, since 2007, and I have never had reason to retract from that view.
Why did this obscure academic, linguistic debate relate to Trump? In 2017, he was sued for purported violations of the Constitution’s Foreign Emoluments Clause. That clause applies to those holding “office…under the United States.” If the presidency is not within that category, then that litigation was entirely without merit.

I understand that your interpretation was based on historical research you have done.
The initial thought in 2007 and 2008 was not based on intensive historical research. The initial argument was based just on a textual reading of the Constitution. There were textual reasons to believe that given the way the Constitution was worded, the president and vice president were not included. There were also textual and historical reasons, not conclusive, to think that the Constitution’s framers would not have casually used “officer of” and “office under” if they meant the same thing. The question was whether we could figure out what those differences meant. I did not think that the president and vice president were included in either category.
Within a few years, though, I had done a good bit of historical research, and I found substantial evidence that confirmed my views. Or, to be more accurate, the dominant view was “Yes, of course, the president holds an office under the United States.” And my historical research falsified the dominant position.
For example, the Office of Legal Counsel (OLC) is the advising body to the Justice Department. When the Justice Department or other departments in the executive branch want legal advice, they frequently turn to OLC. Members of the executive branch, including counsel for the president, will write to the Office of Legal Counsel requesting legal advice. There is a memorandum from the Office of Legal Counsel written by former Assistant Attorney General David Barron, who is now a federal appellate judge, in response to a request that he opine whether then-President Obama could keep the Nobel Prize that he was awarded. Not that he was going to keep the money, but the question was whether he could “accept” the prize and prize money before giving the money away. Why the inquiry? The Foreign Emoluments Clause prohibits those holding an “office…under the United States” from accepting emoluments and presents from foreign states absent the consent of Congress. Barron wrote a memorandum explaining why Obama could accept the prize, even absent congressional consent. Barron’s reasons did not relate to the “office” and “officer” issue. However, Barron assumed (as the memorandum itself states) that the clause’s “office”-language extends to the presidency.
What is interesting about the support for that position is that it shows all sorts of precedents involving presidents purportedly acting under the belief that the limitations imposed by the clause apply to presidents. But the earliest precedent that the memorandum points to—and the same goes for other OLC memoranda on this topic—is from Andrew Jackson, who was not exactly a Founding Father. It struck me as very odd that the first precedent of a diplomatic gift to a president, where he was unwilling to accept the gift personally, would be Jackson.
I started researching other, earlier diplomatic gifts, and I found that President George Washington received diplomatic gifts, one of which was from the French ambassador at the time. This was a framed portrait of then-King Louis XVI. The portrait was a print, but it was full length, and the frame was very valuable. Not only did Washington keep it, but he kept it in full public view; he kept it on display so the public would see that he had it. That was not the only such gift of state received by President Washington. He also received the key to the Bastille, and not just any key, but the main key. It was a gift from the French state through the Marquis de Lafayette, and President Washington accepted and kept that gift too. Both of those gifts are on display in Mount Vernon, Washington’s family estate. Mount Vernon did not have possession of these gifts of state continuously, but by the time George Washington left the presidency, he had sent both of them there.

In other words, they were personal gifts.
I would not say personal. They were diplomatic or state gifts to the president, but the point is that he accepted them, he kept them, and he never asked for the consent of Congress. That seems to indicate that George Washington and his contemporaries did not believe that the president fell under the scope of the Foreign Emoluments Clause. This position appears to be in tension with (if not contrary to) the precedents starting with President Jackson, where it appears presidents believed and acted otherwise. That led me to thinking that there might have been a break in linguistic understanding between the generation of the Framers and the generation of Jackson.
When we look at the phrase “office under the United States,” we may all too casually assume that it must refer to the president; after all, the president works for the United States, and he holds an office. But that doesn’t mean that that is what it meant back in 1788 when the Constitution was drafted, debated and ratified. In short, I think the Washington precedent is very telling. Those who have opposed my position can point to other evidence, but they have not been able to explain Washington’s conduct, his contemporaries’ silence in the face of Washington’s public, presidential lawlessness, or why subsequent historians and others failed to notice that Washington’s behavior was problematic.
There was another document that I found that led to an academic imbroglio in 2017. Many of the framers and the early presidents have collected papers and letters series, often printed in multiple volumes. One of the most complete collections is the Papers of Alexander Hamilton. That series is (I believe) over 20 volumes. The Hamilton series is longer than several of the presidential series. Hamilton was a practicing lawyer, and he was involved in politics from the revolutionary period to even after he was out of office. He left behind meticulous records of his correspondence.
One of the documents in the Hamilton series is an order from the US Senate that was sent to Hamilton, who was then secretary of the Treasury for President Washington. So this was a directive from the Senate to the secretary of the Treasury. Hamilton was directed to list every “officer and employee under the United States” and their compensation. This was a document that the Senate needed for understanding the United States government’s financial situation, and the senators believed (quite rightly) that the secretary had that information or was in the best position to collect it. The list of government positions covered by the Senate’s order is at least as broad as that covered by the Foreign Emoluments Clause.
Now, if you look at what Hamilton reported back, according to his papers, it is a list that includes all of the appointed federal positions. This is what I had stated in my earliest publications on this subject from circa 2008. The list included appointed positions in each of the three branches, while the president, vice president and members of Congress—all the elected positions—are left off the list.
This document, or at least another version of it, is also reported in a series called American State Papers, which was published in the 1830s. Both versions of this list are not photocopies; rather, they are typeset reproductions. In other words, the printer who set up the American State Papers and the printer who set up the Papers of Alexander Hamilton created typeset reproductions of the original.
In the typeset reproduction of the Papers of Alexander Hamilton, the president and the vice president are not listed. However, in American State Papers, the president and vice president are included. When I discovered this, I had already reported to the academic world what the Papers of Alexander Hamilton said. Later on, I came across the copy reported in the American State Papers collection. I was quite flummoxed.

Because it contradicted your theory.
It was not just that it contradicted my theory; it was that the two documents contradicted each other. That led me to believe that one of two things were possible. Either one of the two reports of a single original was incorrect, or one of the two reports of Hamilton’s list was not the actual original. Rather, one report is the original, and the other report was a subsequently drafted copy.
I contacted the National Archives and Records Administration. I spoke to one of the senior archivists. These archivists, quite rightly, are very protective of “their” documents. These documents are national treasures, almost on the level of the original Constitution. I said, “I would like to get a photographic reproduction of this document, and it’s possibly two documents.” He replied, “I’m not going to do that for you.” When I asked why not, he explained, “Because they’re already reported. There’s one in American State Papers and another in the Papers of Alexander Hamilton. There’s no reason to send me down into the archives’ vault to pull the documents, photograph them and send the photos to you. Anyway, why do you want to see it?” I said, “Because they’re reported differently. One has the president and vice president as part of the list, and the other does not.” He said, “No. That’s not true. That can’t be right.” I said, “That is right. I can send you photocopies of how they are both reported in the two collected documents series.”
A few minutes later, he came back and said, “You’re right. They are reported differently. That’s pretty crazy. I don’t know why that is.” He went to the vault and made copies, which he subsequently sent me. It turns out that there are two different documents. Each reproduction is based on a different “original.” There is one document that is reproduced and typeset in the Papers of Alexander Hamilton with one title, and there is another document reproduced and typeset in American State Papers with a slightly different title. But here is the rub. If one is a subsequent copy and the copyist did not include the date when he made it, the copy could have been made much later. I came to the conclusion circa 2010 that the version in American State Papers was probably created in the 1830s, and certainly no earlier than the 1820s. (Hamilton, of course, had died in 1804—in his famous duel with Aaron Burr.)
How did this happen? The American State Papers version was modeled after the Plum Book. The Plum Book, which still exists today in a more modern form, is a list of all the federal government positions and all the federal civil service positions. So these editors redrafted Hamilton’s document to look like the Plum Book, and they threw in the president and vice president, because those positions are listed in the Plum Book. If you look at the American State Papers, in the index the Hamilton document is listed as a version of the Plum Book! In essence, the printers of American State Papers acted as semi-editors; they actively rewrote Hamilton’s document.
That level of archival and historical knowledge is of very little interest to most people. In fact, I tried to write an article about this well before Trump, and I flagged this issue to both law and history journals. The history journals said, “This may all be correct, but no one will ever care. After all, this is not a major document; it’s a fairly minor document. It’s just a report from the Treasury to the Senate.”

It’s unimportant, but it has important implications.
Well, on its face, it’s not one of those critical documents like the Declaration of Independence, and prior to Trump, it did not speak to any of the great issues that interest most modern academics today. It has nothing to do with race, class, gender or any of the other flagship issues close to the hearts and minds of modern American academics. So I tried to explain all this to the academic public back in 2010 or 2011, but no journals expressed any interest.
Then Trump comes along in 2017, and I wrote a brief that said, “According to Hamilton’s use of the language, as reported in the Papers of Alexander Hamilton, one can see that Hamilton took the position that the president and vice president did not hold an ‘office…under the United States,’ because when he was ordered to compile a list of such positions, he did not include the president and vice president.” When I did that, all hell broke loose.

What happened in 2017? Was that the emolument question regarding Trump’s hotel in DC?
This relates to the Trump International Hotel in Washington, DC. The Trump Organization owned the lease on the hotel, and Trump held equity in the Trump Organization. In 2017, plaintiffs sued Trump. They alleged that such payments, which indirectly accrued to Trump, amounted to constitutionally proscribed “emoluments.” The argument was that any compensation that the president received that can be directly or indirectly traced to foreign states, even through contract at market prices, such as foreign government officers staying at Trump’s hotels or paying for his services, should be construed as a violation of the Foreign Emoluments Clause. I was not focused on the “emolument” question, that is: Are such payments proscribed “emoluments”? Rather, I was focused on the “office” questions, that is, Is the presidency an “office” falling within the scope of the Foreign Emoluments Clause?
One of the responses, which was shouted from the rooftops at me and led to a social media onslaught against me, was that Tillman is only reporting one of the two documents, which is contradicted by this other document in American State Papers. Tillman is hiding that document from the world. It was not that I was hiding it. I had limited resources and limited time, and it is not my job to make contradictory arguments that would confuse the public. Indeed, I had already flagged the American State Papers version of the Hamilton list in the literature. Nothing was hidden. In my brief, I focused on identifying the correct document, that is, the original, and the correct argument based on real evidence. It was my opponents who made a less than thorough investigation—actually, no investigation at all. I had to then explain to these five academic “legal historians” how to date a document, because they assumed that the document reported in American State Papers was a copy of the 1793 original or that both documents were originals, as opposed to the list reported in American State Papers being from the 1820s or ’30s. By the way, Hamilton died in 1804, so he never even saw the second document, much less signed it or authorized it. Even a cursory examination of the hand writing, and the purported signatures within the American State Papers document and its annexes, should have revealed that the Hamilton list in American States Papers was not signed by Hamilton. Once I explained that to them, the five historians retracted. That was in 2017. At least, I thought they had retracted. A few days ago, one of the five historians filed a document in litigation in a federal trial court in Maine and participated in a deposition based on his filing. My reading of that deposition is that in 2025 he retracted his 2017 retraction. At least, that is how it appears to me. Or, perhaps, he simply forgot about his 2017 retraction? I suppose that is possible. But it is odd. Very odd.

I understand that you had to explain that to the court as well.
I drafted filings to explain which of the two documents was a typeset reproduction of the “real” 1793 original, and this led to a retraction by another amicus. What was strange about this was that typically amici do not respond to one another; they usually just have short filings to inform the court of an argument or position that was not fully fleshed out by the parties to the case, and that ends participation by the amici. Here there was an amicus responding to me, and I filed a reply, which led to their retraction. The whole process was surreal. Adam Liptak wrote a story about it in The New York Times.
I had to explain to the parties, other amici and the court that the reproduction that the five historians had relied on—the one appearing in American State Papers—was not generated contemporaneously with the original reported in the Papers of Alexander Hamilton. I had to explain to them how to identify a signature; I had to explain how the document’s internal organization and marginalia showed that it was not consistent with a 1790s document. It was very strange, not just about them personally but about the wider expertise of academic and legal historians. There was never anything like meaningful reconsideration or discussion about how a mistake like that could have happened at all by five academics. Why they failed to see what was obvious. After all, historians produced the Papers of Alexander Hamilton. The series editors indicated that the list the Papers reported was signed by Hamilton but gave no such indication as to the version reported in American States Papers. That alone should have been conclusive to any historian with even a passing understanding of how collected papers series work.
What started in 2017 was a real eye opener. It was part and parcel of a series of events, continuing to this day, revelatory of a decline of civility in US academic institutions, law and other fields. A large part was driven by Trump derangement syndrome. But it’s more than that. It’s really quite shocking when academics who have preached civility in front of large audiences depart, in their own publications, from the standards they have regularly espoused elsewhere. But that is where we are. This behavior is omnipresent among the woke left. But it’s not just there. Among right-of-center legal academics, you will find some who will not give the time of day to other academics who have departed, in even the most minor way, from what the former believe to be acceptable legal orthodoxy. It is miserable, mean-spirited fanaticism borne of misplaced self-pity.

Your research seems to utilize two conflicting methodologies: one part is textualism (i.e., the method of interpreting laws and constitutions that focuses on the plain meaning of the text), and the other is originalism (which bases constitutional, judicial and statutory interpretation of a text on the original understanding). Is that correct?
I would say textualism supported by historical research. Some people call that originalism. I don’t mind that descriptive being used, but I just don’t think that it is very informative. There are certain keywords that as soon as you use them, the conversation sort of ends, because people have so many preconceptions about what those words mean and how that person’s research coheres with that term. I just shrug my shoulders when that happens. We have enough conversation stoppers in the West. Why should I add fuel to the fire? For example, this happens all the time in the legal world: If you say someone believes in the unitary theory of the executive, it is a conversation stopper. It doesn’t matter what the person thinks or what evidence he has, or what he means by the unitary theory.

You say your position is based on a close reading of the Constitution and supporting documents, but isn’t there a commonsense argument against your interpretation—if an appointed officer is prohibited from such emoluments, why would an elected official not be prohibited from the same things?
That is the second commonsense argument. There is another commonsense argument before that: The Constitution clearly says that the president holds “office” and that he works for the United States, so it would make good sense to categorize him as an officer of or under the United States. I’m not going to deny that that argument has some force. However, the people who make that argument have to take on board that President George Washington, in full public view, received, accepted, kept, without congressional consent, multiple foreign diplomatic and state gifts. And there was no complaint by his contemporaries, in public or in private—as far as I know, or even by later historians and other academics, until circa 2021. No one seemed to notice this historical “problem” until Trump. If their vision or version of the past is so obviously correct, it would not have been noticed for the first time when Trump was elected president. The point is that history can falsify “common sense” beliefs when reading the Constitution today through modern presentist eyes and modern linguistic conventions.
Now, to your question. If what you are trying to do with the Foreign Emoluments Clause is to make sure that America’s ambassadors abroad are not nobbled, then it is good enough that it only extends to ambassadors and other subordinate officers. The president is going to be here in the United States; it was not until Woodrow Wilson that presidents started going abroad during their administration, because before then international travel was not fast enough (or safe enough) to make that possible. The clause’s focus was not on seeing that every person remained unconflicted; the focus was on seeing that America’s ambassadors were unconflicted. I think that is a fair response, but even if it isn’t, I don’t think you can derive meaning strictly through consequences; you derive meaning by how the term was used and understood. Consequences might reveal that you don’t have the best theory, but I don’t think they define what a clause means.

Were you triggered by the fact that your dry, academic research became so important for present-day politics?
I don’t know that it became important. None of the lawsuits against Trump were finally and substantively determined on the basis of my research. They were always determined by some other issue—usually some other threshold question like standing. There were several cases that the Supreme Court determined were moot after Trump 45’s term ended. Had those cases continued in some fashion, it is possible that the issues I have raised might have been fully litigated and adopted. The “office” and “officer” issue came up again, in a related way, in the ballot access cases that came out of Colorado, because the “office” and “officer” language of the 14th Amendment played a role in that case. I was actually cited by the trial court, but my view was rejected by the Colorado Supreme Court, and it was not touched at all in the US Supreme Court’s written decision.

But one court did base its decision on your research and reasoning.
Based might be too strong a word. The Colorado state trial court judge in one of her orders cited my papers and brief touching on office and officer. In her actual final judgment, in which she held that the president of the United States is not an “officer of the United States” and that the president does not hold an “office under the United States,” she made arguments that were similar to mine, but she never cited me, so I don’t want to say that it was my research that led her to come to the conclusion she reached.
I can say with some confidence that whether she cited me or not, I was probably the progenitor of that view, and my coauthor and I placed that argument before the court indirectly through prior publications and through briefs that relied upon my prior publications. In other words, the briefs of the parties that discussed the “office” and “officer” argument relied upon and cited my publications.
At the same time, the Colorado state trial court judge might have come to her conclusions independently, and if that is the case—that is, that other people independently have come to the same conclusions as I have—then that too is a good result. That would mean that my position does not amount to a daas yachid, because there would be multiple people and courts who agree with me after independent consideration of the issue.
I will give you an example. Former Attorney General Michael Mukasey, who now practices law in New York, wrote a letter to the Wall Street Journal during the Trump-47 ballot-access Amendment XIV, Section III litigation on the topic of “office” and “officer.” He wrote that the president is not an officer of the United States, and more than a few people were upset with him for writing that. Why? Because it seemed wrong (to them), and because they assumed that he was relying upon my research, which does not have the imprimatur of the US Supreme Court. But he was not relying on or quoting me at all. He came to his conclusions independently. The reason I know that is that I wrote to him afterward. I thanked him for writing the letter, however he had reached his conclusions. He wrote in reply that he had never read my papers and that he had arrived at his views on his own. I am not surprised that he did so. If a former attorney general arrives at the same conclusions that I have arrived at, that goes some way to show that my position is defensible, if not part of the mainstream of legal thought.
Steve Calabresi, who is a well-known legal academic at Northwestern University, had been arguing this point with me for 15 years. During the Colorado litigation, however, he said, I’m folding up my opposition to Tillman. It took a while, but he came around in the end. Still, there are lots of people who have not come around, and I cannot say that my views have had a real, substantial influence because, as I explained, the Supreme Court has not adopted my position, and cases that could have turned on that issue were, in fact, decided via some other rationale.
One of the interesting things that happened under Trump 47 is that many of us, including me, assumed that all of these foreign emoluments cases would start up again, brought by new plaintiffs with new complaints on day one, on January 20, 2025, but that did not materialize. Will plaintiffs, old or new, try again? I don’t know. If they do, the “office” and “officer” issue might end up being litigated, and perhaps this time the Supreme Court will speak to it.
As I said, I do not consider the Constitution’s usage involving “office” and “officer” to be my primary contribution to legal academia; it’s just the issue that more people want to talk about.

Perhaps because the issue had political consequences. True scholarship, though, has to be completely objective and apolitical, and it can’t think about the consequences. One is either doing the research based upon the science, or they’re trying to push a certain value.
I think that critique goes too far. We get to look at consequences in law, and there’s nothing wrong with that. And people get to have a point of view, which includes a political one. I think the test has to be: Are we truthful with the sources we use? There is nothing wrong with making an argument that you don’t believe in, as long as you are up-front about it. There is nothing wrong with saying, “This is not an argument I agree with, but it has been made, and I’m just pointing it out for completeness.” I do that frequently.
Let me put it this way: I don’t think we as academics should put out arguments that we believe are 100% wrong. But if we believe that an argument is negotiable and is within the sort that a jury or judge should decide between or among, then even if we ourselves are not in agreement with it, there is nothing wrong with putting it into the literature.

What interests you so much about the Constitution? You don’t live in the United States; you’re currently living in Ireland. And as an Orthodox Jew, the Constitution is certainly not the primary legal doctrine that’s so important to you. Why do you find it such an amazing subject to research?
My first answer is that I’m an American. That is part of my identity. It is who I am.
Second, no one asks that question to a medical doctor, a dentist or a truck driver. Why ask me that question? We all have to make a living some way. This is what has interested me for many years. I knew I wanted to be a legal academic when I was still in college, although I had a first career in an entirely different industry. I only thought I was taking a short break between college and law school, but that turned out to be a whole first career, so I came into law a little late in life.
Although I don’t think I need much more of an answer than that, I will say that some of my “office” and “officer” discussion is linguistically broader than just US law. There is a very interesting discussion in Sanhedrin as to whether Moses was a member of the Sanhedrin or if he just presided over it, which is akin to the questions involving office, officer and the position of apex officials. It shows that other legal systems have struggled with the relationship between the apex figure and the rank and file.
For some things, we want the apex figure treated just like everyone else because we believe in the rule of law and equality. Ulysses S. Grant stood in line in a government office to pay a fine while he was president—at least that is the story. But we also realize that there are times when the apex figure has to be treated differently for the system to work. I am not suggesting that is why the Constitution exempted the president from the scope of several constitutional provisions. What I am suggesting is that there is a linguistic convention that the language of office does not automatically attach itself to apex officials.

All in all, it’s not only a linguistic argument, it’s also an argument about how they once viewed the apex.
I believe that is correct, but I don’t think I can prove that—at least not today. I will put it to you this way: There are reasons why apex officials are sometimes treated differently. Sometimes there are people who do get different treatment even though it might conflict with the equality related norms and expectations that involve the rule of law. So it is not entirely surprising to me that there are certain things that treat the president differently. That doesn’t mean that the president should escape all the restrictions and consequences of those restrictions imposed on others by the legal system.
The issue of if, when and how apex government officials should be treated differently from other government officials and from citizens (and from foreigners) is a perennial problem—not just in our legal system. See, for example, Sanhedrin 19a, Shevuot 31b and Maimonides’ Laws of Kings and Their Wars 3:7, which discusses the amenability of kings and high priests to suit and to giving testimony. The issue comes up even in fiction: e.g., when Prime Minister Cao Cao inadvertently, but in violation of his own legal decree, rode through a privately owned field of grain as told in Luo Guanzhong’s Romance of the Three Kingdoms—by many considered the greatest Chinese novel, first printed circa 1522. I am in the process of writing a book review of the latter, albeit, it is about 500 years too late.

In addition to the textual and linguistic issues that come up, there are value questions as well.
There certainly are. You cannot escape that. But I don’t think every question is a values question. Values questions should primarily come up when there is genuine ambiguity about a provision’s meaning, and often there is ambiguity, but there are also any number of legal questions where there is no genuine ambiguity, and the use of values or purpose toward determining the meaning of a disputed legal provision in those cases is just as threatening to the rule of law as anything else.
There are many things that are threatening to having a peaceful and orderly rule-of-law society. I suggest that the constant focus on values and purposes when examining the meaning of a legal provision can be a threat to the integrity of the legal system when you have questions that are not ambiguous. One way of putting this is that we need a wider rule of lenity when the law is ambiguous. That is, the willingness of the American legal system to use and to threaten terrible punishments when the law is ambiguous is in reality corrosive to the rule of law.

You’re an Orthodox Jew. Does that come into play for your work, or is that separate from everything we’ve discussed?
I would not say it is totally separate; I just don’t have any particular linkages for you. I think I struggle both professionally and religiously just like everyone else. I don’t know that because I am a lawyer or talk about US constitutional law that I have any particular insights into Judaism or things religious or vice versa. I do think that I have a point of view that I try to express from time to time. Sometimes I talk about things that are related to Judaism and indirectly to Israel, but I don’t hold myself out as any sort of expert in regard to Judaism.

Tell me about your relationship with Chabad. Do you identify as a Lubavitcher?
Yes, I do.

Does that inform your opinions about any of the things we’ve discussed, or is that completely unrelated?
I don’t know that I can map any particular thing. It’s not like when I received dollars from the Rebbe, he told me what books to read on American law. That never happened. We never had a conversation like that.

So what did happen?
Before I was dating and before I was married, I asked the Rebbe for a brachah for shalom bayis, and I received one. That’s the story. I plan ahead.

How did your connection with Chabad start?
I think it was around 1988, when I was about 25 or 26. I was working as a researcher and computer programmer for a private investment fund in Chicago that traded futures and futures options. In that office building a shliach took some office space and set up a downtown Minchah minyan, and we became close. I don’t have an exciting story beyond that.

And the rest is history, as they say.
I would not say history. That was my life. I grew in that direction. I will add that there are difficulties living in small countries that if you come from a large country you may not understand. That has nothing to do with the people who live there; it has to do with how small the country is. I now live in a (relatively) small country. I did not understand that when I moved here. I did not realize that there are things in small countries that are just different. If I started telling you a glowing story—I’m not saying I have one, but if I did—it could come off the wrong way to a lot of people here. In the United States, if people tell stories of personal development, meetings with the Rebbe or their religious experiences, because America is a big country and a lot of people can tell such stories, it is negotiable. It goes over well. But if you are in a relatively small country and tell a story like that, it looks like you are putting on airs.
I’ll give you an example of what living in a small country is like. When I moved here in 2011, the Irish court system had a trial court called the High Court and the Supreme Court above that, but there was no intermediate court of appeals. In the United States, almost every state has three levels of courts—a trial court, an intermediate court of appeals and a supreme court.
In 2013, this country had a constitutional referendum to create an intermediate court of appeals, because you cannot create a new court in this country without an amendment to the Irish Constitution. The purpose of the new court was to address a backlog of appeals before the Irish Supreme Court. There were four academics and lawyers who came out against that referendum, and I was one of the four. I said, “You are going to create this court, but it is not going to work,” and then I explained why. It just happened that over the course of Irish history, there have been three members of the Irish national parliament who were Jewish. In 2013, one of them was the justice minister, and the referendum was his proposal. I was told that he was livid. I had just gotten off the boat, and all he needed was a Jewish academic saying that his new shiny court system was not going to work.
The funny part of the story was that when I came to this country, I came under, what we call in the US, a green card—a right-to-work permit. My wife did not have one. At the time when I made a public statement against the referendum, my wife had applied for a right-to-work permit, and her application sat on the desk of the justice minister, who had to approve every such application—because it is a small country. Can you imagine every work permit going before the attorney general of the United States? So there are things people simply do not say in small countries that they would say fearlessly in large ones.

Since October 7, Ireland’s relationship with Israel has been very strained. What has your experience as a visibly Orthodox Jew teaching in a university in Ireland been like?
My university is in a county outside Dublin. As far as my campus and the people I work with, October 7 did not change anything—at least nothing that I have noticed. Of course, I have not polled them for their individual political views either. I have not noticed anything around campus that has changed. In my professional life here at the university and in personal relationships with Irish people elsewhere, I don’t have any reason to believe that I have been the victim of anything like anti-Semitism. It is always possible that one is being a bit naïve.
I will tell you something about schadenfreude. In the US, promotion from assistant to associate professor and from associate professor to full professor, in most law schools, happens almost as a matter of course. If you are meeting your teaching commitments and have a reasonable publication record, you are going to be promoted. In Europe and Ireland, professional promotion as an academic comes very slowly, and not everyone gets promoted, because the view is, “We pay you to teach and to write articles. You have to show a record of doing substantially more than meeting expectations to be promoted.” I had to apply three times, and it took me ten years to be promoted to associate professor. But a good number of my colleagues were promoted on this slow track too, and they were not American Orthodox Jews. Again, I don’t think anything has been denied to me because of my being Jewish.

Do you have enough kosher food in Ireland?
Before COVID, we had an aisle or two of a supermarket that had specialized kosher food—including sliced meat, chicken, beef, cheese, etc. COVID saw the collapse of that enterprise. It was not just COVID; it was also because of Brexit. A lot of our kosher foodstuffs came from or were imported through the UK, but after Brexit we were told it became too time-consuming for a local Irish supermarket to jump through the necessary bureaucratic hoops. Supplying kosher food was picked up as a community function for a year or two by the Dublin community’s single remaining Orthodox synagogue. It bought freezers and ran a sort of supermarket out of the synagogue’s social hall. Since then, that function has been picked up by Chabad, which sells food out of a new Chabad House in Dublin, and it also has a very good restaurant. So Jewish life, in terms of the essentials, we certainly have.
One of the interesting things about the Jewish community here is that it is quite accomplished and integrated, or at least we thought it was, into the wider society. I’m not exactly sure anymore. The world is not exactly the same as it was since October 7, and I think the Jewish community in the United States might feel the same way too. I don’t think the Jewish community’s changed position is unique to Ireland.
This community has never had more than 5,000 people, and right now it has around 2,500. Ireland has around five million people. So the Jewish community has never been as high as one percent of the population. But the Jewish community has produced three members of parliament; three judges, including one Supreme Court justice; it has produced any number of lawyers, doctors, dentists and other accomplished people, and yet it is a very small community.
The Irish Jewish community is different from similar small communities in the United States, which ultimately found themselves extinguished because of assimilation or the flight of Jews to larger cities. In Ireland, it was not assimilation that led to a decline in population; it was that the last two generations of Irish parents raised committed young Jews who wanted to be part of larger Jewish communities with more opportunities for learning (for themselves and their children), more opportunities for meeting other Jews for marriage, and perhaps better commercial opportunities, because up until the 1990s, Ireland was not the most bustling economy in Europe. Whereas smaller Jewish communities in the US often disintegrated due to intermarriage and assimilation, in this community it was its success that caused it to lose a cohort of young people.
Now, to some extent we have had Israelis and other foreign Jews come here—e.g., my own family—but it remains a small community. As a matter of fact, the community has just sold its long-standing synagogue to trade down to a smaller building, in part because of the expense of maintenance and utilities for the older, larger building. It was felt that the older building was too much for a community with its small population and small active membership to support—particularly given the real possibility that it will continue to decline in population. ●