OA36: The Emoluments Clause (w/Seth Barrett Tillman) Part 2

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 36. I am host number negative 70 Thomas Smith. That over there is host numero uno Andrew Torrez. I'm going to keep going with that joke. I'll have different numbers every time. But Andrew Torrez, you are host number one in my heart. How are you doing?

0:01:24 Andrew: Aw.

0:01:34 Andrew: Well, much better now that you've, uh, yeah.

0:01:37 Thomas: So you're not quitting? Okay. All right. Thank God. No, I'm just kidding. So all right. Excited for another episode. We've got some good political questions. Questions we've got the conclusion on our interview with Seth Barrett Tillman going to be very fun but for now let's get to our question number one for the day

0:01:42 Andrew: That's

0:01:57 Clip: He who questions training, only trains himself at asking questions. What?

0:02:05 Thomas: Eric Alsman asks can the Supreme Court deem an amendment ratified by the required ratio of states unconstitutional interesting that's that's kind of a yeah that's sort of a tricky one so it's like Like, theoretically, I've never thought about that before. Could we ratify an amendment as long as enough people want it? We could, like, strike down, I don't know, freedom of speech or something, right? Because it's like, it's an amendment to the Constitution. So I would assume that it doesn't have to be constitutional because that's why it's an amendment. But what do you think? Yeah,

0:02:43 Andrew: That's exactly right, so we could pass amendment 30, repeal amendment 1, uh, and then freedom of speech would no longer be a protected, uh, right in this country. Um, the the reason is, uh, it's maybe we can do a segment on, uh, Marbury versus Madison and the power of judicial review, uh, and the historical case surrounding that, which is, it's fascinating to lawyers. I don't know if it will be fascinating to our audience, but you and I should talk about it because it might be. The power of judicial review, that is the power to declare laws unconstitutional, it's not clear from a historical perspective that that was intended in the form in which it is applied today.

0:03:30 Thomas: I have heard about this. Audio

0:03:31 Andrew: There you go. No. So without going all the way down through Marbury v. Madison, what I would say is that power is a power confined by the Constitution and sort of by definition, that which is in the Constitution is constitutional. Um, it, it, it poses an interesting question. And one of the things that, you know, is a theme from, uh, Tuesday's episode, it, you'll hear it again today and in our discussion is, uh, what interpretive device you use, uh, to interpret the constitution, right? Right. And we we are frequently critical of originalism as practiced by Antonin Scalia. And we have talked about, you know, various competing theories, often which.

0:04:17 Andrew: So, for example, I've mentioned the legal scholar Ronald Dworkin and his book Taking Rights Seriously, which is very which was very influential on me as a as a law student. Um, those other views tend to view the constitution as embodying certain fundamental principles and that the vague use of language, right? Things like when we say due process of law, right? What's a process and how much of it are you do? Um, we, those models then say, well, look, the reason those, that language was deliberately left vague is because it was meant to embody a kind of principle. And then you use that principle to interpret subsequent cases that come up. You don't put yourself in the head of, you know, Alexander Hamilton in 1787 and say, well, what would Hamilton think about this?

0:05:06 Andrew: You instead say, uh, we ratified a document that was meant to, uh, embrace certain principles. How does that principle adjudicate this particular case? The notion of amending the Constitution, I just, you know, again, being fair, poses a little bit of a challenge to that, to those kinds of Dworkinian views of legal analysis, because you could amend the Constitution to put in a principle that was at odds with what you think of as a fundamental underlying principle animating the Constitution. It hasn't really happened so far, right?

0:05:52 Andrew: Run afoul of those fundamental animating principles. And the amendments that haven't passed, for example, the Equal Rights Amendment that was pending for a while, I think many would see as consistent with a Dworkinian view of equality as underlying the Constitution, for example. But it does it poses that that hypothetical theoretical question of, you know, what if super a majority of the legislature and 38 states got together to pass something that, you know, overturned the First Amendment or was otherwise, you potentially contrary to the animating principles under the Constitution? And as far as I can tell, the answer is your recourse would not be in the courts, would not even be at the Supreme Court.

0:06:39 Thomas: It sounds to me like it doesn't even make sense that the Supreme Court would review something like an amendment to the Constitution because their job is to determine if law is constitutional. So it seems like that would be getting right to the source. But hopefully we're protected by the fact that you need a whole lot to happen in order to amend the Constitution. And it would be pretty, I would think, pretty rare for all of us to decide that we want to, you get rid of freedom of speech or something like that. Or enough of us, I guess.

0:06:51 Andrew: Right.

0:07:10 Andrew: You do. You do. But I bring up the example of the temperance movement as, you know, as instructive, right? That's a social movement that's swept over and it doesn't fit. Yeah. I mean, it doesn't fit neatly into left or right. Uh, could imagine a similar social movement, uh, sweeping across the country. Yeah.

0:07:14 Thomas: Yeah. Yeah. Yeah. So it can happen. Yeah. All right. Well, thanks for answering that question. Thanks for the question, Eric Alsman. Now we're going to go to part two of the interview with Seth Barrett Tillman. And And then afterward, don't worry if, if you're a bit lost in the, in the technicalities. I am going to throw at Andrew my best questions on this interview, and we're going to get maybe what Andrew's conclusions are after hearing Seth's position enunciated fully. We can kind of get our resident expert's opinion back on the issue itself. So look forward to that. But for now, let's hear part two with Seth Barrett Tillman. Uh,

0:08:14 Seth: Not going I think it's fair to say that no court has opined on this precise language and, uh, I cannot point to a U.S. Supreme Court decision and tell you you're wrong. What I can tell you is that the traditional reading of that clause, to the extent we do have commentary, is that state officials are excluded and that when Professor Teachout suggested otherwise, it was a bit of a reach. I mean, I can show you sources that say state officers are excluded, but I can't prove it to you because I don't have an on point federal decision or Supreme Court decision. That's where we are. There's another lesson to be taken from this too, which is that because in fact we are on ground where we lack firm judicial decisions, what we should be talking about is how to fix the system, not how to punish people who we have political disagreements about and using unsettled law to get people who can't beat at the polls. All the talk about impeachment is mistaken in principle.

0:08:27 Andrew: Well

0:09:13 Seth: You ought not, you should not, and reasonable people would admit I think you cannot impeach a person where there really is no law. Everyone is in a certain sense just guessing on the scope of this clause. And what we ought to be talking about is solutions, not threats and punishments. And that's one of the sad things about the debate so far is everyone, everyone on one side, particularly the side that lost the last election, imagines that this is going to save them through some impeachment process. That's the wrong way to go.

0:09:44 Andrew: Let, let me say, I I agree with, I think, 99% of what you've just said. This show, you know, we have a pretty lefty audience and we have been very upfront about our political biases, but we have beat the drum loud and long that all of the different mechanisms that have been tossed around by those who lost the election to sort of evade the consequences of a uh democratic election are uh we've we've come out strongly against those, so uh, so we're in agreement on the on the political uh importance. What what I find interesting is uh the the methodology of of constitutional analysis that's uh that's going on here, so I think this is an interesting uh, it's an interesting question, and that's why, and that's why I've got you on. None. So let's, I want to kind of get into, you've described your position.

0:10:36 Andrew: I want to get into the meat of, you know, sort of how you arrived at that position. And again, you know, kind of for our non-legal audience, I, I I think it's, it's it's fair to describe you as an an originalist. I think you've you've sort of happily take on that term. Go.

0:10:51 Seth: Actually, people usually call me that when they want a reason to disagree with me. I don't usually call myself an originalist. I like to think of myself as an interpretivist. I'll accommodate a wide group of methods, depending what materials I have at the time. With a clause like this, and I think this is one of the interesting things, With a clause like this, we are all originalists. The reason is the alternative to originalism, the metric, the dominant interpretive method, is to interpret clauses through the prism of judicial decisions. But here we don't have judicial decisions, so in a certain sense we're all originalist now. Now, I think you're also asking me how I, to this particular interpretation? Question. Are you asking me what's my best evidence for it? Or are you asking me how I initially came to it? Because, in fact, much of my better evidence, I came after the initial idea.

0:10:55 Andrew: Right.

0:11:42 Seth: So, for example, I pin a lot of my theory or the theory I put forward, that office under the United States doesn't include the president and vice president and doesn't conclude Congress, to a document drafted by Alexander Hamilton in 1793. Alexander Hamilton was sent an order. An order was issued by the United State Senate, which was preparing a financial statement. And they ordered Hamilton, who was secretary of the Treasury, to produce a financial statement listing all the civil officers under the United States and employees also and their salaries. And it took him nine months to draft that document, and he sent it to Congress, and that document is still in the National Archives. And that document starts with the secretary of state. There's no president, there's no vice president, and there are no members of Congress.

0:12:25 Andrew: I want to cite the original provision, the original citation in the Journal of the Senate, which is, I think, 1792. It's page 441. Um, it's a paragraph in length. I um, could not tell from the context, um, sort of what the purpose, uh, of the request to the secretary of the treasury was. Uh, and I was curious if there's any other, uh, secondary materials, if there's anything else that's kind of helps give guidance to uh, to you know, what the Senate was doing at that time. Mm.

0:12:50 Seth: The Senate was regularly asking the Secretary of the Treasury to prepare financial statements. It was – if not yearly, it was every two years and there were a whole series of these. But in fact, the language of the requests varied year to year. As a matter of fact, one of the interesting things about the 1792 request is it also had a direction to Hamilton to leave out the judges, which Leads me to believe that they were looking for what you might call the civil list as opposed to the permanent civil list, that is the people who you could fire as opposed the judges who were permanently on payroll. And also the military was permanent, particularly officers. They're not there for two or four years like many of the other positions that could be created or destroyed by statute or only exists for an election cycle.

So the Senate was trying, as I understand it, to get a sense of what are the sort of offices that we're paying for, the sort we could get rid of if we really want to. And actually, there's correspondence from Hamilton going to all the division heads, all the cabinet heads, because he has to get that information from them. Even Congress, he had communications with the secretary of the Senate and with the clerk of the House, even though they were not in the executive branch. And they are on the list. So

0:13:09 Andrew: Right. OK.

0:13:57 Seth: He had appointed officers from every branch, not just the executive and judicial branch, from every branch. He left out the judges, but he had the clerks of the various courts. And he left out the president, the vice president, and the senators and representatives. Now, that was a contemporaneous construction of the same language that's in the Constitution. And that was a contemporaries construction of that language by Alexander Hamilton, who was, in fact, a drafter, a ratifier.

So he was a significant Now, on the other side – no, I shouldn't say the other slide. In addition to that, we have the fact that George Washington, first president, also at the Philadelphia Convention, received diplomatic gifts while he was president. And those gifts are not in the National Archives. He sent them to Mount Vernon after accepting them. Them. They are still on display at Mount Vernon. One of them was the key to the Bastille that was sent to him from Lafayette, and the other one was a full-length framed portrait of King Louis XVI, who before he was beheaded, well, he was still the King of France, given to Washington by the ambassador.

Now, I would say that as a historical matter, Washington should not be construed as an idiot, a person who forgot a provision of the Constitution, nor as a crook, a person that would walk away with public property that was understood to be property of the American government and not his personally. So he had to put some sort of construction on this clause, and he thought the property was his. It was a gift. And by the way, these gifts weren't in secret.

I mean, they were widely reported in the press, and you're not going to find, at least I haven't found after many years of research, anyone complaining that Washington's conduct here was wrong.

0:15:33 Seth: And there were members of the Senate who were opposed to Washington. They were called anti-administration members, uh, They weren't a formal party, but they definitely opposed the president. So I would say that's the most powerful evidence on my side, those, those two things. There's other evidence, but but I would say those are the most proud. I will tell you I was not aware of that evidence when I first put this theory forward in 2008. I discovered this evidence several years later. I was very pleased, but my original theory was simply based on the text.

0:15:40 Andrew: Right.

0:16:02 Andrew: OK, I understand your argument to be that Washington's understanding of the Emoluments Clause must have been that it did not apply to him because he accepted the gifts? There was no debate before Congress. They remain in his personal possession for the reasons that you've just stated. Obviously, that understanding changed, right? And you're aware of the subsequent history of presidential gifts of the Tyler gift and the like. Do you have a theory as to why that changed? Okay.

[0:16:28] GUEST1: Ahead. I do have a story. And again, it's just a theory. All right. The theory is basically like this. American English today and our intuitions about American English and about law today are much closer to Jackson's time than they are to Washington's time. And I think for very good, good reasons. The people who staffed Washington's administration and the people who drafted the Constitution, they grew up under the influence of drafting practices of the British Parliament and its acts of the American colonies and their statutes. And those colonies in the British Parliament used the phrase "officer under the crown." It's still used today, and except in Australia where they call it "officer under the Commonwealth of Australia." And that phrase does does not extend to elective offices.

0:17:15 Seth: We just imported that phrase from the British statutes into our statutes when we became independent and we drafted our own constitution and we changed "office under the crown" to "office under the United States." But the people who grew up in that tradition, as a matter of fact, that tradition is still alive in the United Kingdom and other commonwealth countries, they all understand it doesn't refer to elected positions. What happened in the Unites States is the generation that came afterwards, after Washington, the generation that, you know, grew up in Jackson's time and after, they didn't grow up with this understanding of British law. They just read the words the way we read them today. Well, the president's in office. He works for the United States. He's in office under the United States. And the meaning of the words changed within a generation. Now, you might ask yourself, well, maybe the new meaning is a better meaning.

0:18:02 Seth: That's fair. There are many people who interpret the law dynamically and say if old words take on new meanings, that becomes the meaning. But I don't think that's a good argument to be made in this case, especially when there are so many people who are looking to impose restrictions on people they disagree with, and especially when there are no on-point adjudications. If we had an on point Supreme Court adjudication taking on embracing this new meaning, then that would be the meaning. But right now, it's still an open field. And I would say the Washington and Hamilton meeting is probably one that we ought to accept as opposed to the more restricted meeting that some people are looking forward to use to save them from politically unpalatable circumstances.

0:18:44 Andrew: Okay.

0:18:44 Seth: Circumstances.

0:18:45 Andrew: And I just want to be very clear, the reason that we have you on for the interview is to figure out if the, what you've described as the Washington and Hamilton meeting is in fact the Washington and Hamilton meeting. So in a sense, this is this is kind of, I like the way you've put it, which is to say that if you, if you do not have an originalist, or I think Professor Teachout calls herself a quasi originalist in response to you. But yeah, it's a – in a sense, it is kind of an in-house debate among those scholars who are trying to figure out the meaning of the clause in 1787, which is – I find that fascinating, and I am hoping our listeners find that interesting as well. Well, I want to take that and I want to look at, this is provision A that is cited in the Norm Eisen, Painter, Richard Painter, Lawrence Tribe article.

0:19:39 Andrew: And it is the religious qualification test. So it's Article 6, Section 3. It says, no religious test shall ever be required as a qualification to any office or public trust under the United States.

0:19:52 Seth: That proves Tillman's wrong because then the president must be left out and we can't apply a religious test to the president. That's just a crazy result. I addressed this years ago. I mean, I address this back in 2013 and I argued that the president is a public trust. And that language is there expressly to recapture the elected positions. The elected positions are public trusts under the United States.

0:20:13 Andrew: Okay.

0:20:13 Seth: Now, if that language had been left out, I'd have a problem. But that language is in. And I'll tell you something very interesting about that language, by the way. My argument isn't perfect in the sense that if public trust really referred to the elected positions, you'd expect it to come first. It should say public trust or office under the United States, not the other way around, right? If you read the Federalist Papers, when Hamilton quotes this clause, that's exactly what he does. He quotes it as public trust or office under the United States.

0:20:39 Andrew: Right? Yeah, [0:20:41] GUEST1: Yeah, it's it's that's in Federalist 70, where he says, if it be a public trust or office, in which they are clothed with equal dignity and authority, there's peculiar danger of personal emulation and even animosity. And so, yeah, I mean, you've hit on my question. Let me kind of draw it out a little bit First, I take it, I think I've heard agreement that no construction of this clause makes sense that would exclude the president.

0:21:08 Seth: No, no, no. No construction that excludes the president and members of Congress would make sense. I, uh I, but I would not only readily concede that I think that is absolutely widely agreed. I would include the president under using the office part of the clause. I wouldn't include the president using the public trust part of the clause.

0:21:08 Andrew: Right.

0:21:25 Andrew: Excellent. So then it seems to me then that the test that we're looking for in order to sort of, you know, delve into this contemporaneous evidence is whether the framers of the Constitution habitually referred to elective offices as public trusts and excluded them from their discussion of office. And in particular, since we're focusing on the president, the presidency, right? We should expect that folks like Hamilton in the Federalist Papers should describe the presidency as a public trust and not as an office. Is that fair? Fair [0:22:01] GUEST1: fair? Okay

0:22:02 Seth: No, no, no. That is not fair. I don't agree with that at all. If you buy into what you might call the post-Jacksonian understanding, the word office is taken to mean position and the word under the United States is taken to mean the government who you work for. So office under the United States would include pretty much all the elected officials. That's one way of looking at it. I'm suggesting that office under the United States was a term of art which itself evolved from the prior term of order sort of like a uh what we might call in uh prior prior learning office under the crown. It had a technical meaning that people of the day understood, and they would have laughed at if you said, well, that includes members of Congress or other elected positions. Just as today, if you go to the drafting body for statutes of parliament and you say, well I see a statute here that says office under the ground, does that include members of parliament?

0:22:03 Andrew: Okay Okay Right

0:22:59 Seth: At that point they'd either fire you or think you came out of the loony bin. An officer under the Crown in Britain is someone who works for the crown, the crown being the executive government, or at least is appointable by the crown or removable by the crowd. So you don't look to the individual words. You look to the history of the phrase. Now, if you're asking me, would Hamilton in everyday language refer to the presidency as an office? I would say probably he would. The presidency is an office. It's just not an office or under the United States, as that term is used in the constitution.

0:23:30 Andrew: So I I certainly appreciate the distinction there and often uh you know when you're trying to reconstruct uh the intent of framers you know people will look to private correspondence and the like but but my but question is directed to uh Hamilton's writings in the Federalist Papers which of course were uh arguments about the clauses as they were used in the Constitution. So, yeah. So so, for example, in Federalist 67, Hamilton is discussing what would become Article two, Section two, which is which to me speaks sort of directly to this, which says the president has the power to nominate and by and with the advice and consent of the Senate to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court and all other officers of the United States whose appointments are not in the Constitution. Otherwise provided for and which shall be established by law. Right.

0:24:19 Seth: We have very firm multiple Supreme Court holdings on that clause, which positively state that officers of the United States are only people who are appointable under that process. And the clear implication of that is that excludes the president and vice president from the category of officer of the United States. In that clause.

0:24:39 Andrew: In that clause.

0:24:40 Seth: Yes. In that clause.

0:24:40 Andrew: Yes, I would agree. Right.

0:24:42 Seth: And by the way, when I first made this argument in 2008, the people who were opposing it, who said all the office terminology means the same thing, they were not willing to concede that point. Their attitude was, well, of course the president's an officer of the United States. He's an office officer. He works for the United State. Albeit, therefore, it follows he's an officer of United States, but there is a reading of Article 2, Section 2, Clause 2, the one you you just read, and it is now the dominant reading that the president is in fact cannot be described that way as a matter of fact, that's what the the Supreme Court I said it said in effect in the Free Enterprise decision just two or three terms ago. You're asked me, can I point to a plethora of literature describing the presidency as a public trust, uh, you know, by in Hamilton's hand or his contemporaries. The answer is no.

0:24:42 Andrew: So, so,

0:25:29 Seth: In fact, I can't. I think I've cited a few examples of it in my papers. I don't have them at my fingertips. I don't think that's controlling. I think the people who drafted the religious test clause understood that officer under the United States, or isn't wide enough for religious tests. In fact, they needed wider language. That is, in the disqualification clause, it's just officer under the United States. But for the religious test clause, they wanted, in fact, a wider category. They wrote officer under the United states and public trusts under the united states. So if you start from the proposition that Eisen and Painter are correct, that the officer under United States language includes not only appointed officers, but also elected officers, then I could turn the question around and say, well, what good does the extra language in the religious tests clause do? What does public trust add? It's all nonsense, nonsense, right?

0:26:15 Seth: It's not needed, because according to Eisen and Painter and Tribe, office under the United States already includes appointed officers and all the elected ones, right? That's their position. So my position at least explains what the additional language of public trust under the U.S. accomplishes.

0:26:28 Andrew: Right? Okay. Given that reading, I want to go back to the emoluments clause for a second. I realized I didn't ask you this. And it's possible that well, let me ask the question. Do you read, and no person holding any office of profit or trust under them, them referring to United States, do you read that as office of prophet, comma, or trust? Or do you lead that as off at a office of Prophet or office of trust using the analysis we talked about earlier. [0:26:57] GUEST1: ahead. It's Office than

0:26:58 Seth: Of Prophets or Trust under the United – that is, Prophet and Trust modify office collectively. And as a matter of fact, we know that because you'll find other provisions in the Constitution that reverse the order. It's office of trust or profit, and there's that makes no sense to talk about a profit under the United States. That It's grammatically nonsense. So whether it's profit or trust or trust our profit, it means the same thing. They are both grammatical restrictions on the scope of what offices under the United States we're talking about. But it's not a trust under the Unites States. No, that makes not sense at all.

0:27:25 Andrew: Okay, well, that was my initial understanding, and then clarify.

0:27:31 Seth: The "or" is dropped out, and some people replace it with an "and," and sometimes people drop out the "or" in favor of an "of." You'll find the Constitution not only misunderstood, but you'll find it misreproduced. So there's been a lot of confusion on these points over the years, unfortunately, unfortunately. But, you know, coming back to Eisen, Painter, and Tribe, I mean, one of the ways they try to make their argument is by saying, well, Tillman can't be right, because if he's right, then this follows, and that doesn't make any sense. Unfortunately, a lot of the arguments in the Eisen paper are arguments that really have already been addressed in the literature before, and it's just a pity that they didn't take that into account. I mean, I could go over some of the the other arguments with you if you like, but I'll give you an example. One of the arguments they bring down is, well, if Tillman's right, then the 14th Amendment doesn't make any sense because the 14th Amendment has this list of officers that leaves out the president.

0:28:25 Seth: And how could it be that when the Reconstruction Congress was trying to deal with the problem of, you know, Confederate treason, that they would allow a former Confederate, not to deny him all these positions, but to allow him to be president? Now, the simple answer to of that is the 14th Amendment wasn't drafted when the original Constitution was drafted. It was drafted more than 80 years later. It might very well be, and I have no firm position, that the language of office under the United States used in the 14TH Amendment several generations later in that particular clause might have been intended to include the president. We could do some research. We could look into it if we want. I'm not all that interested in the question. But the idea that just because my argument may work, as I think it does for for the original Constitution, doesn't mean that meaning has to be imported four generations later when similar language was used in the middle of a national crisis.

0:29:18 Andrew: Sure. And I should add, I was going to, when we got to the section on the Eisen paper, it's a tangential connection, but prior to 2010, Norm Eisen and I were both partners at Zuckerman Spader. He was in the DC office. I was in the Baltimore office. We have a very tenuous connection, but I do want to disclose that. We are former colleagues and are, but I don't work for work for or with Norm anymore, and I'm no longer with Zuckerman Spader, but I just, I did want to disclose that. [0:29:54] GUEST1: disclose. Let me also Sure.

0:29:55 Seth: Point out another weakness with the Eisen painter and tribe. They make a big deal about a 2009 Office of Legal Counsel memo, which in a

0:30:00 Andrew: Yeah. I I, I just want to say, I want to, I want you to make your point. I agree with you in your criticism on the reliance on the 2009 DOJ memo, um, but, but please, please make [0:30:15] GUEST1: please make it. [0:30:15] GUEST1: – Uh. Go ahead.

0:30:15 Seth: I want to extend that criticism. So let me tell your audience what that memo said. That memo was the Office of Legal Counsel acts as a legal advisor to the government, but also to the president. That function was originally with the attorney general, but it's been delegated by the attorney general down to OLC. See. And when President Obama won the Nobel Prize, he wondered if he fell under the aegis of this clause, and if he could keep the money and what he should do. And David Barron drafted this memo. He's now Judge Barron. And he basically said, we assume, I mean, it was more than assuming. He said, surely, surely the president is in office under the United States. And then he goes on for other reasons to conclude that the gift from the Nobel Prize Foundation doesn't actually fall under of this class of gifts that's prescribed, which, by the way, does show you there are limits to the reach of the clause.

0:30:16 Andrew: Yeah.

0:31:05 Seth: Now, if that decision by Barron, if I shouldn't say ruling or decision, I should say if that memo by Baron had been a judicial decision, had it been by an Article III judge, what we would have called the assumption, surely the president is in office, we'd call it dicta, because it wasn't essential to the decision he reached out for other reasons. It wasn't something he thought about. It wasn't something he researched. It wasn't something he established.

It was just an operating assumption in order to allow him to progress to deeper analysis on other points where he decided that this clause didn't apply to the president on those particular facts. So there are, there are strengths to the case that Zephyr Teachout has made over the years. By the way, I'm a big fan of Zephyr Teachout. She's a very fine scholar. I like her. We've talked to one another. Well, I wouldn't say we're close friends, but but I I wish her only well. Well, can say is what she has done on this clause, I recommend to my own students to read, it's scholarship. I can't say that about lots of other things that have been written on this cause to date. And I'm not going to name names because that's not nice. What I

0:32:09 Seth: Kan say is if you want the other point of view, the non-Tillman view, you go to Zephyr Teachout.

0:32:09 Andrew: Well, yeah, So, um, something that is, that is, uh, both in Teachout's articles and is also cited in the Eisen paper, is the testimony of Edmund Randolph. And is it fair to say that, well, let me just ask that as an open-ended question. What do you make of the testimony that Edmund Randolph at the Virginia ratifying convention describing the emoluments clause as applying to the president?

0:32:37 Seth: In the the clearest possible terms. He affirms that outright. And that is a very good argument for a teach-out side. As a matter of fact, in one of my first papers on this subject, I found that quote, I put it in a paper, and I sent that to Zephyr Teachout, who over the years has not cited it. And to tell you the truth, I think for very good reasons. Edmund Randolph believed that the office language of the Constitution not only reached the president and vice president, but also reached the members of Congress. Now, there was a time in American history where not only Randolph believed that, but other people believed that too, very early in American history. And this led to what was called the Blount impeachment. Blount was a United States senator. He did some, you know, it's alleged he did some pretty terrible things.

0:33:24 Seth: He was expelled by the US Senate. And after he was expelled, he was impeached by the the House. So you might say, well, doesn't that make the argument that senators are impeachable? In fact, probably not. I don't say for sure, because the Senate basically refused jurisdiction on the impeachment. And most people understood that to mean that the Senate reached the view that senators aren't impeachables, even though the House felt otherwise. The modern view and the view since the Blunt impeachment, and I would say the dominant view even in Randolph's time, was that representatives and senators aren't impeachable. And this was essential to Randolph's view. As a matter of fact, when Randolph made these statements in Virginia, Monroe, who was, you know, another important person from that period of time, who also became president, unlike Randolph, wrote in his objections to Randolf in a book called Observations on the Constitution, Randolph is wrong about this.

0:34:13 Seth: Senators and representatives aren't impeachable. The problem is you can't just take Randolph unusual view about the president into the Foreign Emoluments Clause without grabbing on to his very unusual view about the impeachability of members and senators, his view that the office language of the Constitution everywhere includes not only the president, but it also includes members. That is a view almost no one is willing to accept today. And that's probably the reason that even though I pointed this clause out to Zephyr several years ago, she's been smart enough not to cite it. And I have to say I'm a little disappointed to see Eisen, Painter, and Tribe really not seeing what the stakes here are. What they're doing is they're grasping straws, not seeing the real implications of the arguments they're making.

0:34:56 Andrew: Okay. Think that this This has been a really enjoyable exploration of your position.

0:35:02 Seth: There's something that hasn't happened yet that I would love to see happen, which is this debate shouldn't be a debate just for lawyers, academic lawyers and constitutional lawyers. There are any number of biographers of Washington and Hamilton and Randolph and people expert on that period of time, historians, they should be dragooned into publishing on this. And people in the media should be asking them, what do you think? You're an expert on Washington or Hamilton or on this period. Do you think the office language of the Foreign Emoluments Clause reaches the president and vice president? It shouldn't be a debate just for lawyers. I would love to hear other types of academics from other fields, even political science, too. Of opining on the scope of this clause. All right, that's one thing. The second thing is, one of the leading originalists is a guy at Yale named Akhil Amar.

0:35:49 Seth: And interestingly, Akhil Amar has said in his publications, this clause does apply to the president. But he has also said that we should put real reliance on the traditions and precedents established by George Washington and his administration. And it would be wonderful to ask him, Washington accepted diplomatic problematic gifts, we rely on that precedent or do we say Washington got it wrong? Because that's really the question that has to be asked.

0:36:16 Andrew: Yeah. And I think both of those are really illustrative. We have sort of an ongoing discussion here on the show over originalism as a judicial philosophy. And I think that's really illustrative of what that philosophy entails. So I appreciate that conclusion on that. You very much no for,

0:36:35 Seth: This has been fun and I appreciate that but

0:36:40 Thomas: All right, so we just finished part two of the interview, Andrew, and I have to say that, as a layperson, first off, I really enjoyed it, really interesting to hear you guys sort of a little bit argue back and forth, or at least get him to illuminate his view a little bit more. I just, quick question, give me, give me just one word on this, I'll let you talk more in a sec. Quick question. Are you convinced? Yes or no?

0:37:06 Andrew: I'm not convinced.

0:37:07 Thomas: Not convinced. Okay. I had my suspicions, but I wanted to point out That for someone like me and for someone like our listeners, I'm sure, or some of our listeners, maybe not all of them, who aren't lawyers, because we actually do have a ton of lawyers listening, I would say that for me as a non-expert, despite my impressive bar exam results, to me it sounds like, okay, we've got, you know, a couple experts here. We've got Andrew talking. We've got Seth talking. They've both got their opinions. And further, I'll go even further and say Seth's arguments that are based on these specific word choices, you know, there's an appeal to those that I sort of get. I sort of get why people might be drawn into that kind of originalism method of interpreting where you say, ah, the under the United States, office under the United States, that's different. That doesn't mean president, that sort of thing. So I guess I've got some questions. I've got a lot of notes for you. But if you want to just maybe take a minute to briefly explain why you're still not convinced and take us through that.

0:37:27 Andrew: Sure.

0:38:14 Andrew: And, and let me say, I mean, what I wanted to do was explore fairly and fully a position that I think is in some ways being unfairly caricatured by people who are our political allies, right? And that this is, you know, as we've heard, it's a, it's a serious constitutional argument that Professor Tillman is making. It's not one that I accept, but it deserves better than, you know, like I linked on our, our, on Twitter account, you know, there was a cartoon that was sort of like imagining the founding fathers sort of dancing around and excluding Donald Trump from the emoluments clause.

And, you know, I don't think we do ourselves any intellectual favors to fail to take something seriously. So I wanted to have Professor Tillman on to explain his position so that, you know, we're responding to that and we are engaging with it in an academic manner. Um, here's what I would say first. First, I think there was agreement between the two of us at the outset that what Professor Tillman is doing is trying to ascertain what the founding fathers thought "office under the United States" meant in 1787. That's a very interesting question if that's relevant to how you interpret statutes.

Um, I think he conceded that the far more common view, uh, is, uh, you know, the, the, uh, you know, what I have called the mainstream model of jurisprudence throughout Opening Arguments, uh, where we're not originalists and where that's not a controlling question. Um, he had an argument with respect to that that I assume

0:38:58 Thomas: Hmm. Okay.

0:39:47 Andrew: That we'll get to.

0:39:47 Thomas: Yeah, yeah. Yeah, well, let me just ask it right now since we're on it, because the first point that he made that I thought, oh, well, that's interesting. That makes me think about it, is he said, well, there's no jurisprudence on this. Now, first off, I assume that's accurate, right? I think you agreed at the time. There isn't really, no one has adjudicated this. No court has adjudicated this.

0:39:47 Andrew: Yeah. Sure. Sure.

0:40:08 Thomas: Is that correct?

0:40:08 Andrew: There is no Supreme Court decision interpreting the emoluments clause and the meaning of office under the United States. Right. So that is

0:40:17 Thomas: Okay, so why then, just to put it to you again, if that's the case, and we're all kind of in a sense, originalists when it comes to this, because there is no jurisprudence. Why is that not a convincing argument to you?

0:40:18 Andrew: Correct. Yeah.

0:40:32 Andrew: Because part of the reason why I would favor a dynamic analysis of the Constitution is a rule of law based reason. So let me give you a practical example of that. In 1998, when Bill Clinton was impeached, there was the last president to be impeached prior to Bill Clinton was Andrew Johnson and the last president to be impeached prior to in the 1860s. And the last president prior to Andrew Johnson was nobody. Right. So so there was not a lot of law for the impeachment of Bill Clinton. And sort of tried to figure things out during the Clinton impeachment.

Now, there is no Supreme Court decision on what counts as impeachment because what counted as impeachment in the case of Bill Clinton was decided in the House of Representatives. So this is an example where there's no clear controlling court case. But nevertheless, if Donald Trump were to be impeached, I would expect that we would, for rule of law reasons, follow the same procedures and use the same kinds of guidelines that we used in the Bill Clinton impeachment. And if somebody were to come along and say, oh, but I have this originalist view. And as it turns out, we didn't know this then.

0:41:01 Thomas: Okay,

0:41:47 Andrew: But the founders expected that there would be a hearing before the Supreme Court before you could bring an impeachment. I think we would all look at that and go, wait, wait, wait, wait. Why are you trying to change the rules in between Clinton and Trump based on something you think might have happened in 1787? Right. Right. So in other words, the precedent of what the public understanding of the laws related to impeachment as of 1998 is, in my view, important, even if that's not dispositive and even if it's not the result of a court decision controlling on that point. So, yeah,

0:42:28 Thomas: So let me ask you what you're basing that on then. So to bring the analogy back to the actual, you know, emoluments clause, what is, where are you getting that understanding for? Like what evidence and I guess data are you kind of using to say the public understanding and the precedent, even if it's not Supreme Court precedent, the precedent is that the Emoluments Clause applies to presidents and vice presidents, etc.

0:42:54 Andrew: Excellent. And the answer I would give, this comes from the Zephyr Teachout article that is linked in the show notes. And I had asked Professor Tillman about this, but we passed over it rather quickly. Um, in 1840, uh, the Imam of Muscat, um, that's not a territory or an office that exists today, Ahmet Ben Haman, uh, tried to give horses, pearls, a Persian rug, shawls, and a sword to President Martin Van Buren in 1840, and, and Van Buren turned it down. He said, look, uh, the Constitution has this thing called the Emoluments Clause that prevents me from receiving gifts from foreign. And Van Buren wrote that it was, quote, a fundamental law of the republic, which forbids its servants from accepting presents from foreign states or princes.

0:43:43 Andrew: And then a couple of years later, the same guy tried to give horses, Arabian horses to President Tyler, who had succeeded Martin Van Buren. And President Tyler, instead of saying no, submitted it to Congress for approval, as the Emoluments Clause provides, sold it off and then gave the proceeds to the Treasury. And every president since Van Buren and Tyler, right, so that's an unbroken chain that goes back 177 years, has operated under the assumption that the emoluments clause applies to foreign heads of state trying to give gifts to the president. So another piece that we sort of lightly elided over was the 2009 DOJ memo regarding the Nobel Peace Prize.

0:44:33 Andrew: And I agreed with Professor Tillman, I do agree that anyone who cites that DOJ memo as evidence in this debate that the Emoluments Clause applies to the president is misapplying that memo, because the memo simply assumes that it does. Right. The memo says, well, obviously, gifts are prohibited under the Emoluments Clause. Here's our analysis as to whether the president can accept the Nobel Peace Prize.

0:44:57 Thomas: So it was more looking at whether or not the Peace Prize qualified rather than, so it was already assuming the question, essentially.

0:44:57 Andrew: Right. Qualified as an emolument. That's it. Yes. And in specific, it assumes that with no citation on the definition of the word office under the Constitution. So I agree with Professor Tillman that 2009 memo is not evidence to this debate. However, I think it does fall into the category of the larger evidence that you asked me for, which is to say for 177 years, it has just been assumed as a matter of public law that foreign nations can't give gifts to our president without congressional approval. And I think that's meaningful.

0:45:05 Thomas: Okay. Yeah.

0:45:40 Andrew: And Professor Tillman's position was that's not.

0:45:41 Thomas: Well, let me ask you, is it possible And does it matter to you, like, maybe Van Buren and was wrong, like, does it, is it for you, is, does it just not really matter, it's just the the fact that it's become precedent, um, but what do you think, I mean, do you have an opinion on whether that, you know, the first president to really, I guess, write a letter, put into writing about this, you know, does it matter to you that that he might have gotten it wrong, or what do you think on that?

0:45:43 Andrew: Yeah.

0:46:07 Andrew: Yeah. And I would say that this is a distinction between originalism and, you know, the mainstream view of jurisprudence that I hold. The question of, hey, maybe this guy in antiquity got it wrong is obviously a question that that comes up for both sides. Right. Like you can say maybe Van Buren got it wrong with respect to Professor Tillman's examples. You can say, hey, maybe Washington got it wrong. What I think the benefit of the sort of the dynamic model is, is that the look, the more we have a view of kind of an unbroken chain of events over time, the more opportunity there is for people to have looked at things contemporaneously and said, okay, Van Buren got it wrong. So, for example, right, Tyler, a couple of years later, could have said, no, hey, look, I want these horses. Van Buren got it wrong, right? He didn't say that.

0:46:57 Thomas: Right.

0:46:57 Andrew: Obama could have said, right, would

0:46:57 Thomas: And if he had, and if there had been an unbroken chain after that of presidents saying, oh, yeah, this doesn't apply to me, your opinion would be different, right?

0:47:06 Andrew: Be very different. Yeah, absolutely. Absolutely.

0:47:08 Thomas: Okay. Yeah, that makes sense.

0:47:09 Andrew: And I think that what that does, it's not to suggest that the conduct of elected officials controls what the law means. I think Professor Tillman would be laughing if he heard me say that, and rightfully so. So but the conduct of officials gives us evidence as to what the terms in constitutional provisions mean. Right. And so I think you probably have a question on this, but we had a discussion about how if if, as Professor Tillman believes, it was commonplace for people to use the construction office under the United States to exclude the president. And everybody thought that that was the case. And that explains why Washington did what he did. I asked the question, well, how could that possibly have radically transformed in 50 years from Washington to Van Buren?

And he gave an answer that was sort of linguistic a evolution answer. He said, well, maybe generation that were taking things directly from the common law died off and then a sort of more literalist generation came along. And that's not an implausible thing to say standing alone. So, for example, we could do that now and just go back through newspapers on the use of the word gay, for example, right? Think about 1940, 1990, and today, right? Like in 1940, gay would almost exclusively mean happy. In 1990, you would be aware of the happy definition, but it would mostly be homosexual. And today, I would say, you know, the the happy definition has almost entirely faded out into antiquity.

0:47:24 Thomas: Yeah. Yeah.

0:48:53 Andrew: Um, but that evidence is there in the text at least, right? Like we can see that definition of linguistic shift. We can see articles and, you know, cartoons uh, that joke about the word play. And I mean, you know, it, it would be very, very easy, uh, even using technology available in only the 18th and 19th centuries to demonstrate the evolution of the word gay. And in fact, I'm sure linguists have done that, right? Like this example couldn't have only occurred to me. There isn't that evidence with respect to the definition of the word office or the phrase office under the United States.

0:49:18 Thomas: Yeah. Yeah. Okay. Well, we're a little short on time. I have a lot more questions, so I'm going to try to squeeze them in, but I was going to ask about George Washington. What you thought about that? Give me a quick, quick answer on your George Washington opinions of he accepted these gifts. I think Seth said it was the key to the Bastille and a full length portrait of Louis, Louis C.K., I'll assume. I don't know, Louis somebody.

0:49:32 Andrew: And Yes. Yeah. Yeah. Right.

0:49:49 Thomas: So what about that?

0:49:49 Andrew: Yeah. Yeah. So these gifts were given to Washington in his first term. One was a key to the Bastille by Washington's longtime friend, the Marquis de Lafayette, who designed Washington, D.C. And, you know, they had a close personal relationship. And the other was a full length painting of Louis the 16th, which was given by the first French ambassador to the United States. And what I would say with respect to that is for Professor Tillman, he has an ongoing dispute with Akhil Amar, who is an originalist at Yale, who you heard Professor Tillman that Akhil Amar has an originalist view that says anything Washington does sort of gets super precedent, right?

0:50:31 Thomas: Right.

0:50:32 Andrew: Right. So I agree that that's a real problem for Akeel Amar, not a problem for me at all, because to me as a non-originalist, I look at Washington as sort of sui generis. Right. Like the these gifts were given two years before Washington was unanimously reelected as president. Right. So, you know, there there was some. And I don't I don't know how big it was in his first term, again, because he was unanimously reelected. Certainly in his second term, there was some factionalism starting and there were some opponents of the president. But, you know, it doesn't surprise me that, you know, Washington could sort of do whatever he wants. I also think, as I gave a little color on the gifts, you can understand why both of them may have been treated as exceptions. One was sort of viewed as a longstanding friend and friend of the country in the Marquis de Lafayette. And then France and the nascent United States obviously had a very, very significant relationship early On. Um,

0:50:50 Thomas: Yeah. Right. Could

0:51:31 Andrew: And so yeah could he could he right could he have said yeah, yep.

0:51:32 Thomas: He have just assumed congressional support? You know, because it is in the clause that if you get permission from Congress, it's fine. Right.

0:51:40 Andrew: It it absolutely, and he could have assumed that that was a formality. I I don't know, but what I would say is to me, it is absolutely a piece of evidence in favor of Professor Tillman's thesis, um, but it's not a dispositive piece of evidence for me, uh, quite the contrary, yeah, because I'm not an originalist because I, I don't enshrine things Washington did as defining what the statute meant. And in fact, I'm far more likely to take the opposite view. Would love to have Professor Amar on and go through that. Maybe we will do that.

0:51:54 Thomas: Because of your different approach. Yeah. Right. Yeah. Yeah.

0:52:11 Andrew: But that would be my answer, that it is a piece of evidence. It's far from dispositive in my view.

0:52:14 Thomas: Right. OK. Next question. There was a lot of talk about the disqualification clause of the impeachment clause. Don't what section and how the wording was kind of similar. And so I believe let me know if I have this right. Hopefully I followed it correctly. I believe you were asking him, well, look, if your argument is true, then this similar language would imply that anyone who's impeached is not disqualified Or sorry, rather, the president or vice president, I guess, would not be disqualified because the language is the same there. And then he said something like, yeah, that's true. They wouldn't be disqualified after impeachment. And his reasoning was they wanted to make sure that Congress couldn't just impeach every possible political opponent and disqualify them from being president.

0:53:05 Thomas: He also said, yeah, people in jail can be elected president. So therefore it's reasonable to assume that someone who was impeached could still be elected president. So were you convinced by that? What do you think about that argument? And did I, did I get it right?

0:53:18 Andrew: Yeah. Yeah, you got that entirely correct. The only gloss that I would add is that, uh, Professor Tillman pointed out that the disqualification clause itself is also invoked very, very rarely, which I think sort of cuts both ways. So number two, in terms of whether I'm satisfied, remember that my point in asking this question was sort of to test the linguistic construction that Professor Tillman has put forth. And to say that is, when we see other uses of "office under the United States," should we read that as similarly excluding the president?

I would point out that the story that Professor Tillman tells about sort of an overreaching Congress, uh, impeaching the hell out of everybody, uh, is, it's not something we see in the literature, uh, and particularly in the Federalist Papers, which, um, I'm going to reference again later in this, uh, which were, you know, the papers drafted by the founding fathers to argue in favor of the Constitution.

So, um, it strikes me as plausible, uh, but in, in terms of looking at it, I think that that the better reading is to say, sure seems like, if disqualification is the draconian punishment that Professor Tillman says it is, right?

0:53:42 Thomas: But his

0:54:33 Andrew: Like you can't do anything, right? You can't have an office of trust. You can't have an office of profit. You can't have an honorific office, right? Yeah, but you can still be president, right? To me, that was a tough pill to swallow. Um, and so if you read the disqualification clause, uh, again, for which there is no jurisprudence. So this is just a linguistic argument. Um, but if you read the disqualification clause as exclude as, as applying saying, if you are impeached and the disqualification clause is, uh, applied to you, right? Right. So you were then prohibited from holding office. The idea that you would then be free to run for be elected and assume the office of the presidency. That's a tough argument for me to swallow. And if if you think that the disqualification clause would prevent you from being president, then a for sure.

0:55:20 Andrew: I you also reject Professor Tillman's construction of the emoluments clause. So that was the that was the point of that line of analysis. Again, I wouldn't

0:55:30 Thomas: Position, I guess, is consistent there at least.

0:55:32 Andrew: Yes, Absolutely. No, it's the I want to I want to say this very clearly. His position is absolutely consistent across all of these provisions, even where I think it, you know, sort of causes some tension. And I think we're going to get to the where I think it causes the most tension, right?

0:55:51 Thomas: Well, my, the last question I wanted to ask again, time constraints, we've tried to pack a lot into this episode, but the last thing I want to ask is the Edmund Randolph Thing. I'm not sure how well that was set up in the interview. Cause I, I didn't know really what, what you were referring to. Maybe just, could you go into what you were asking there and maybe what his, his answer was a little bit with some more context so listeners and and me listeners And I can understand.

0:56:00 Andrew: Sure. Sure. Um, Sure, Edmund Jennings Randolph is one of the founding fathers, um, and he spoke in favor of the Constitution, in favor of ratification of the Constitution in the state of Virginia, um, he was also a governor, I mean, you know, so he's His words count. And in arguing in favor of the adoption of the Constitution, Randolph described the Emoluments Clause as applying to the president. And here's what he says. He says, quote, quote, there is another provision against the danger mentioned by the honorable member opposing the Constitution of the president receiving emoluments from foreign powers. If discovered, he may be impeached. If he be not impeachable, he may be displaced at the end of the four years. I consider, therefore, that he is restrained from receiving any present or emoluments, whatever.

0:57:06 Andrew: It is impossible to guard better against corruption. OK, so that seems to be pretty good contemporaneous evidence of at least one founding father who looked at the Emoluments Clause, who was friendly and on good terms with all these people who presumably knew the definition of the word office under the United States, all of the stuff that we're looking for. And he came to the conclusion and argued in public, no, no, no, no, no, this definitely applies to the president.

So Tillman's response was that Randolph has some other weird views and some weird views on the applicability of the Emoluments Clause to senators that we don't presently hold today, um, that that's also true, um, so you know, it may undercut him as a source, uh, but I think when we're talking about sort of piecing together a a skeletal record, uh, analysis is something to be dealt with and to be fair to Professor Tillman, right, not only did has he dealt with it way, but He described it to us, uh, he brought that quote to Zephyr Teachout's attention. So again, you know, that, that, you know, to be commended on the, on the scholarship. But, you know, it sort of goes in the hopper when you are making a decision at the end of the day as to, you know, how you are persuaded by, by these things.

0:58:21 Thomas: Well, um, I think that's all I have for you on my cross-examination, um, Is there any final thoughts that you'd like to put on this whole interview? Sure.

0:58:27 Andrew: I, I, yeah, there, there are two, if you'll sort of permit me kind of, I'll try and go as briefly as possible. The first First is the other piece of evidence that was offered by Professor Tillman for the office interview was the Alexander Hamilton list from 1792. And I thought when I asked him to describe sort of the purposes of assembling that list, he described it as preparing a financial statement. They were looking for the civil list of employees. And I think this is a direct quote, for the people that the Congress could fire. So it doesn't surprise me. And I don't read a whole lot into the fact that that list didn't include the president and vice president, because obviously, you know, the Congress was not prepared to fire them. So in terms of how that cuts, I think there's, I there's sort of an argument the other way. It, with everything else, it remains evidence, but I'm not sort of strongly persuaded by it. What really tilts the balance for me on its own terms is what I started to get at in terms of the linguistic shift argument.

0:58:35 Thomas: Right.

0:58:48 Thomas: I'm

0:59:37 Andrew: And this is particularly crucial when it comes to the questions that I asked Professor Tillman about the Religious Test or Qualification Clause, which says no religious test shall ever be required as a qualification to any office or public trust under the United States. And we both agreed that that clause has to apply to the president for innumerable historical reasons, right? Like it was it was 100 percent clear the founding fathers did not want a religious test for the president. Professor Tillman's very consistent answer is that the presidency is a public trust. And I asked him then, if that were the case, we would expect find in the contemporaneous literature language describing the presidency as a public trust and not language describing the presidency as an office under the United States.

1:00:29 Andrew: And so what I did was I went to the Federalist Papers. There are 10 that are all penned by Hamilton. They begin from Federalist 67 to Federalist number 76 that deal with ratifying the Constitution with respect to the powers of the presidency. And what you find when you go through those 10 papers is you will find zero uses of the phrase public trust in relation to the presidency outside of Federalist No. 70, which we talked about in the interview. And you will find about 30 to 35 uses of office respect to the presidency. Now, what you won't find is the smoking gun. Right. You will not find Alexander Hamilton saying the presidency, which is an office under the United States, comma. If that were the case, then, you know, I I wouldn't.

1:01:22 Thomas: Sure, he wouldn't hold his position if that were the case, that's

1:01:24 Andrew: Yeah, right. I mean, yeah, of course. Right. That that that would be clear. But but you do find things like in Federalist 69, the president of the United States would be an officer elected by the people for four years. The king of Great Britain is a perpetual and hereditary prince sort of, you know, contrasting between the two.

So, you know, you you have this language of office or officer being used pretty liberally and you have zero and this and OK, like I can accept that, you know, maybe you wouldn't need to be super careful with your language. Although, you know, if you think there's a huge distinction between office and office under the United States the in the document in which you're arguing for the ratification of the Constitution, you might think you would you would use your language More cautiously. But but but far more so than the negative language, I draw a larger influence from the lack of the use of public trust to describe the presidency. And the only place it's used, like we said, the interview Federalist 70, as synonymous with office. Right. So it's not it's certainly not dispositive Professor Tillman's argument.

And I think sort of taken together, then that leads me to believe as a matter of linguistic construction, if you start with the premise that the religious test clause must apply to the president and you add to it the ambiguity as to whether a public trust describes the presidency, that seems to provide some evidence for our side of the scale that says, well, then the presidency, you know, what's left is the presidency must be an office.

1:02:10 Thomas: Absolutely.

1:02:58 Andrew: This, and there's some other argument we could talk about, the discussion in Federalist 67, but this episode is running pretty late as it is. I mean, I think the conclusion I would draw, I welcome, I know Professor Tillman has listened to part one and he's going to listen to part two. If there's sort of further points of exchange, I would welcome that. I was impressed, impressed, uh, with the seriousness of his position as an argument, it is one with which I think, uh, should be engaged, I'm, I, not persuaded, uh, I'm strongly persuaded that it should be taken seriously, so that's, uh, and I hope, I hope our listeners enjoyed that, I know there was a lot of lawyer on lawyer, uh, know, uh, deep conversations there. But gotten good feedback on part one, and I'm hoping that enjoyed this sort of deep dive.

1:03:43 Thomas: Yeah, I certainly enjoyed it. And And I think this back and forth will kind of help illuminate a little bit of what was going on in your mind behind the questions and that sort of thing. So like you said, wish we had time to dissect it a little more. Maybe we'll hear more from Seth via email or something. Who knows? But thanks so much to Seth Barrett Tillman for that interview and Andrew for breaking that down for us.

1:04:16 Thomas: All right. Second listener question for today. This one's from our fine, fine patron Sakashite Fukasumi. A, oh, oh. And this is not really a question. This is something that we got a lot of. Believe it or not, we got about a billion people saying, hey, I don't think anyone answered this, but that's the nature of doing a podcast. You get a lot of people telling you when you got something wrong or incomplete. A solicitor doesn't usually argue a case in court. This has to do with the British legal system. Their main job is legal work outside of the court. Barristers wear the gown and the wig, and their main job job is to argue cases in front of a judge. As a client, you usually have a relationship with your solicitor, but little contact with a barrister who is instructed by your solicitor. Interesting.

1:04:10 Clip: The law breaking down

1:05:04 Andrew: A bunch of people wrote in with these distinctions, which I think are really fabulous. Tom Morris wrote us to say, in addition to that, that trainee solicitors actually complete a different kind of academic, they complete something called the legal practice course, while barristers.

1:05:22 Thomas: I thought you were going to say they wear a training wig that has like a little wheel on it. Anyway.

1:05:29 Andrew: You can tell, you can tell we're men who do this, this podcast, that we both went to training wheels, but um, uh, and barristers complete the BVC, which is the Bar Vocational Course, um, in addition, barristers have to be a member of one of the Inns of Court, of which there are four: the Inner Temple, the Middle Temple, Gray's Inn, and Lincoln's Inn, um, and uh, and this is just, this is really uh, kind, kind of fascinating stuff, in much the same way that U.S. professional soccer teams have kind of aped the terminology of international soccer. So you have, like, I think it's like Real Salt Lake and, you know, they've used kind of the the same language, even though it doesn't make any sense in the U.S., um, there are legal clubs and societies, um, one of which I, I am a member, uh, that use the In terminology, uh,

1:05:33 Thomas: Yeah.

1:05:48 Thomas: Weird. Oh, yeah. Yeah. Huh.

1:06:22 Andrew: Here, so that's kind of the, it, that was neat, historically, to learn that, um, the idea of lawyers belonging to an inn, I had no idea where that came from, and now, uh, uh, now I know a little bit more about that. So, um, yep.

1:06:33 Thomas: Now, you know, well, someone wants to start the British version of opening arguments. That's fine with us because, you Know, I don't think we have an expert of British law and that's OK. I think the important part is, though, and I think what everyone really was the concern behind these questions was even though we kind of messed up, we weren't sure about barrister versus solicitor. Will that affect the fact that if I pass the bar, I'm still going to wear a wig like a barrister? And the answer is yes, I will still wear a powdered wig if I pass this entire bar exam because I just am going to, there's that. I didn't really, so to, to allay everyone's concerns, you that's still going to happen. And, All right. Well, Well, thanks for that question. Thanks for all those clarifications that people sent us. Yes, we did get a lot of them, but that's okay. We don't mind. Now is that time of the show where we've got to thank our top, top patrons. That's, of course, something we do once a week on every Friday show.

1:07:06 Andrew: Excellent.

1:07:33 Andrew: So thank you to Roger Metcalf, Danny Rosari, Eli Bosnick, Dave Nichols of the Positively Doubtful podcast. Thanks to Steve Sigmund, Jim Grove, Desecrator, Patrick Fussell, Amanda Lipnack, LaBibliotecatrice, Heather Loveridge, thanks to Geeker41, Sean Pitti, Ian and Allie, Matthew Vernon, Violet Page-Hall, and thank you to Heath Enwright.

1:07:59 Thomas: Absolutely. And, of course, also thank you Jeffrey Maynor, The Wayward Willis, Matthew Maxson, Leon Hartley, Matthew Hillier, Zena, Dave Lovely, John Bodley Esquire. I love it. Hunter Ash, Kaylee Reiser, Jeff S., Sakashite Fukasumi, Pro Panic, Philip Strongberg, Michael Schaefer, Michaela, Rob V., Michael, Frederick Alstromer, Sammy, Conrad Michaels, Zabby, and The Inciting Incident Podcast. Thank you guys so much for being our Hall of Fame patrons. You are the best, and you're the reason the show goes.

1:08:34 Andrew: Yeah, I would add that John Bodley can not only call himself Esquire, but he can wear a powdered wig as far as I'm concerned.

1:08:41 Thomas: Sure. Well, everybody can. Everybody should. Let's bring it back. Let's Bring Back the Powdered Wig. You heard it here first. All

1:08:48 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:08:54 Thomas: Let's find out whether or not I will be wearing that powdered wig in the future. We've got another bar exam question. Time for TTTBE7.

1:09:01 Andrew: All. Right. Okay. Thomas, are you ready?

1:09:07 Thomas: Hmm. Well, I'm four of six, so you tell me. I think I'm quite ready, quite trained on these subjects. So give

1:09:10 Andrew: So, Here's the Question. A painter working for a construction company was working with a group of construction co-workers on a house when a section of the house fell down on the owner. The painter declared, quote, "I knew they should have reinforced the standing wall better than that. It's all their fault," end of quote. It turned out he was referring to co-workers employed by the same construction company. The owner filed suit for damages against the construction business. He tried to put the statement from the painter into evidence, but the defendant objected. Will the court sustain the company's objection, that is, as the defendant, to the admission of the the painter's statements? Okay, so this is a question about hearsay.

1:10:02 Andrew: A lot of people have written in with questions about hearsay, so now you get to put your knowledge to the test. Will the court sustain the defendant building construction company, their objection to the admissibility of the painter's statements? Answer number A, yes, because the painter is not qualified to make such statements regarding non-painting duties. B, yes, because the painter is not a participant as a negligent party in the catastrophic mistake that occurred. C, no, because the painter works for the same company as the negligent workers and he made his statements within the scope and course of his employment. Or D, no, because the painter may testify as a subcontractor to what he observed while on the location.

1:10:51 Thomas: This is, I think this has got to be the hardest one yet, because this is the first one where I felt like I could almost make a case for any of the answers. I was leaning toward thinking it wouldn't really be admissible. Like they would they would I was I was leaning toward a yes answer because it does seem like hearsay. It does seem Like the kind of thing like, oh, this is just something that a painter uttered. And, you the the people in question would not be painters who are reinforcing walls or whatever. So I at my my instinct was, yeah, this wouldn't be admissible. But on the other hand, I don't know, when you when you put it the way that answers C and D did, I could kind of see I would say I would Say D would maybe be the least likely for me. But see, could you read C one more time? That

1:11:38 Andrew: C is no, because the painter works for the same company as the negligent workers and he made his statements within the scope and course of his employment. Okay.

1:11:48 Thomas: Seems like a reasonable answer to me, that this is tough. Gosh, this is a really hard one. I would think that you would still, I mean, thinking like the lawyer I am, I mean I think you would want experts on either side saying like, yes, they should have done this, no, they shouldn't, but I don't know that that informs whether or not this is like admissible or not, or whether the judge would like just not even let it be heard, you know. So, I, know, I think I'm going to go with C. I think that this will be allowed to be heard and was, it was in the scope. He was working for the company. He was there at the time. Yeah, I don't know. I'm gonna go with C. This is a really hard one. I could see a case for almost any answer. And like I said, I even was leaning toward a yes answer initially, but I think I'm going to go with C and, and, uh, just hope that, that my reasoning makes sense.

1:12:36 Andrew: Well, we will find out next Tuesday if your answer is correct. Remember, as always, that you can play along with Thomas as he takes the bar exam by quoting our tweet announcing and dropping this episode and including with that your reason or reasons for the answer that you've chosen. Folks have done some clever stuff like screenshotting large blocks of text and including that in their answer. Sometimes we pick short ones, though, so do a good job.

1:13:02 Thomas: Right. True, true.

1:13:07 Andrew: Go

1:13:08 Thomas: It's really the, uh. Just, just whether it's a quality answer or a funny answer or whatever I would, I think we should also add in an effort to branch out. We can also accept Facebook share answers. If you share the episode post on Facebook and also comment using that share thingy, the important part is we want to make sure we're getting the notice of the show out there. We want to get it noticed. So as long as you're sharing, but with the dot, dot, dot, you know, and then you can like comment on it. We'll also accept those answers. So we're kind of broadening our approach of answers to maybe some people aren't on Twitter. So if you're on Facebook, you can also play the game now.

1:13:45 Andrew: Yeah, the way to play the game on Facebook is to like our page, the Opening Arguments podcast, podcast, um, and then every time we release an episode, we post, uh, to Facebook that the episode has been released, and so you can access, uh, that post from the page and quote it and, uh, and share it on Facebook, uh, tag us, and, and we will read those results as well, um, that's not because we need more, more work to read, that a lot of people are playing along, I think, I think a lot of folks are enjoying the segment, but we do want to make it accessible for our listeners who are not on Twitter.

1:14:22 Thomas: Sure.

1:14:22 Andrew: So I think that's a great idea.

1:14:23 Thomas: All right. Right. Well, I got to say, I'll be biting my fingernails on this one. I'll be really nervous to find out next week whether or not I got this right. That was a toughie for me, but maybe I'm overthinking it. In either case, thank you so much for joining us for another episode of Opening Arguments. It's been my pleasure. Thanks again to Seth Barrett Tillman for coming on the show. Really appreciate him doing that. And I will have to say until next time, stop breaking the law.

1:14:56 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.