All of Blackman-Tillman’s articles, presentations, Amicus briefs, commentary and blog posts on Section 3 and the Insurrection

[This post is co-authored with Professor Seth Barrett Tillman]

After the 2020 presidential election, we thought we were done with pressing debates centered on litigation over the “office” and “officer” language of the Constitution. The litigation over the emoluments clauses, which has dragged on throughout President Trump’s four-year term, was reportedly dismissed as moot. And we could return to our regularly scheduled academic activities. But then January 6th happened. That day we both immediately realized that Section 3 was on the table. As the groundhog dayOR The Godfather Part III, we feared being drawn back into the debate over whether the President was an “Officer of the United States” or held an “Office under the United States.” Our fears were well founded.

We started writing about the topic on January 7, and published our first blog post in the early hours of January 8th. And on January 20th we released our first one send arguing that Trump was not an “Officer of the United States” for purposes of Section 3. You will see that the arguments we made in that post are generally consistent with the positions we have advanced before the United States Supreme Court and with those advanced by the board of Trump.

Over the past three-plus years, we have written extensively about the implications of January 6th. Tomorrow, February 8, 2024, the United States Supreme Court will hear oral arguments in Trump vs. Anderson. In this post we will provide a summary of our articles, presentations, briefs, etc. relating to Section 3.

Section 3 Articles of revision of the law

1. What would happen if the Biden Administration prosecuted and convicted Donald Trump for violating 18 USC § 2383?2021 University of Illinois Law Review Online 190 (2021) (published 7/5/21).
2. The President is an “officer of the United States” for purposes of Section 3 of the Fourteenth Amendment15 NEW JOURNAL OF LAW & LIBERTY 1 (2021) (published 12/20/21).
3. Sweep and force the President into Section 3, 28(2) Tex. Rev. L. & Pol. 350 (forward 2024) (published 09/19/23).

Related law review articles

1. Offices and Officials of the Constitution, Part I: An Introduction61 South Texas Law Review 309 (2021) (published 08/18/21).
2. Offices and officials of the Constitution, part II: the four approaches61 South Texas Law Review 321 (2022) (published 2/1/22).
3. Offices and Officers of the Constitution: Part III, Appointments, Impeachments, Commissions, and Oath or Affirmation Clauses62 South Texas Law Review 349 (2023) (published 12/23/5).
4. Offices and officials of the Constitution, Part IV: The Office. . . pursuant to the United States Drafting Convention62 South Texas Law Review 455 (2023) (published 12/23/5).

(For those curious, Parts V and VI of our ten-part series are mostly completed, though they may change depending on what happens next. Trump vs. Anderson.)

Presentations

1. Section 3 is self-executing?, Federalist Society Faculty Conference (1/23/23).
2. Trump, Section 3 and InsurrectionGeorge Mason Federalist Society Chapter (4/22/23).
3. Will a plea deal keep Trump out of the White House? Opening Topics Podcast (05/23/23).
4. Debate on section 3Georgetown Federalist Society (10/25/23).
5. Yes, a court ruled that Trump “incited an insurrection” – now what?Opening Topics Podcast (11/23/23).
6. Guest on National Constitution Center podcast to discuss the Section 3 case (11/1/24).
7. Section 3 Debate: Josh Blackman and Will BaudeChicago Federalist Society Chapter (01/17/24).
8. Trump, Section 3 and InsurrectionBoston College School of Law (01/24/24).
9. Trump, Section 3 and InsurrectionBoston University Federalist Society Chapter (01/25/24).
10. Trump, the insurrection and the ballotFederalist Society of South Texas College of Law (2/1/24).
11. The legal issues behind the Colorado voting disqualification caseHeritage Foundation (2/7/24).
12. Sweep and force the President into Section 315th Annual Hugh & Hazel Darling Foundation Originalism Works in Progress Conference, San Diego, California (2/24/10).

Amicus Briefs

1. Amicus BriefColorado Supreme Court (11/27/23).
2. Proposal for authorization to participate in the oral discussionColorado Supreme Court (11/27/23).
3. Amicus BriefMichigan Court of Appeals (6/12/23).
4. Amicus BriefUnited States Supreme Court (9/1/23).
5. Proposal for authorization to participate in the oral discussionUnited States Supreme Court (01/29/23).

Comment

1. Only the feds could disqualify Madison Cawthorn and Marjorie Taylor GreeneNew York Times (04/20/22).
2. Seth Barrett Tillman, It’s not a panacea: Trump disqualification and plea deal, Lawfare (9/20/22).
3. Why Manhattan District Attorney’s Trump Case Can’t Be Transferred to Federal CourtLawfare (5/18/23).

Blog posts

All posts are about the Volokh Conspiracy, unless otherwise indicated.

1. Can President Trump be impeached and removed for reasons of incitement? (8/1/21).
2. We should not forget the free speech lessons from President Johnson’s impeachment trial (01/14/21).
3. Why do different positions in government receive different types of free speech rights? (01/17/21).
4. Is the President an “officer of the United States” for purposes of Section 3 of the Fourteenth Amendment? (01/20/21).
5. A response to Andrew Hyman on section three of the Fourteenth AmendmentBlog on Originalism (01/26/21)
6. Define a theory of “public” and “private” crimes for impeachment (2/3/21).
7. The First Amendment arguments in the trial memorandum of the managers of the House of Representatives (4/02/21).
8. What do “many” of the more than 140 law professors think of the First Amendment and impeachment? (2/6/21).
9. New Evidence and Arguments on the Scope of the Impeachment Disqualification Clause: A Response to the House Managers’ Trial Memorandum (7/02/21).
10. My work has been cited by President Trump’s lawyers (2/8/21).
11. A Response to the Memorandum of Response from the Managers of the House of Representatives (2/11/21).
12. If Donald Trump is convicted of violating 18 USC § 2383, will he be disqualified from serving as president? (02/18/21).
13. New Article: What if the Biden Administration Prosecutes and Convicts Donald Trump for Violating 18 USC § 2383? (04/30/21).
14. New article in NYUJLL: Is the President an “Officer of the United States” for purposes of Section 3 of the Fourteenth Amendment? (12/13/21).
15. Garland’s pick: Should he indict Donald Trump for inciting insurrection? (12/23/21).
16. Section 3 Legal Action Against the Nomination of Representative Madison Cawthorn (1/11/21).
17. Don’t be so sure about Trump and Section 3 (2/2/22).
18. A response to Mark Graber’s “Legislative Primacy and the Fourteenth Amendment.” Balkinization (04/22/2022).
19. No, 18 USC § 2071 cannot disqualify Trump from the presidency (8/8/22).
20. To indict or not to indict? This is the question. (08/31/22).
21. Lawfare News: “Why Manhattan DA’s Trump Case Can’t Be Transferred to Federal Court” (5/18/23).
22. New York District Attorney Bragg Claims President Trump Was Not an ‘Officer of the United States’ (31/05/23).
23. Trump’s lawyers cite and disagree with Blackman and Tillman on whether or not the president is an ‘officer of the United States’ (06/16/23).
24. Smith’s indictment against Trump in Florida suggests he will not bring an insurrection charge in Washington (06/16/23).
25. SDNY “Believe[s]” In Dictum That President An “Officer of the United States” for Purposes of the Federal Officer Removal Statute (07/19/23).
26. What Trump’s indictment left out (8/1/23).
27. New article: sweep and force the president into section 3 (9/12/23).
28. Professor Calabresi to the WSJ: President Trump cannot be disqualified (9/12/23).
29. Professor Akhil Amar, in his podcast, responds to Attorney General Mukasey and the Tillman-Blackman position (09/14/23).
30. Updated version of “Sweep and Force the President into Section 3” (22/10/23).
31. District Court of Colorado ‘holds that Section Three of the Fourteenth Amendment does not apply to Trump’ (11/17/23).
32. Move the Section 3 officer’s topic from “Off The Wall” to “On The Wall” (21/11/23).
33. Griswold vs. Anderson: The Section 3 case before the Colorado Supreme Court (7/12/23).
34. Jefferson Davis: President of the United States? (8/12/23).
35. Blackman and Tillman, On the Wall (21/12/23).
36. Natelson on the offices and officials of the Constitution in 1788 and 1868 (29/12/23).
37. A new, rushed and flawed article in the section 3 debate (1/4/24).
38. Amicus Brief filed Trump vs. Griswold On behalf of Professor Seth Barrett Tillman (9/1/24).
39. Louisville Daily Journal (April 1868): President is not an “officer of the United States” (10/01/24).
40. We’re in Section 3 Endgame now (1/11/24).
41. Overview of Amicus Briefs in Support of Plaintiff in Trump v. Griswold (01/19/24).
42. A brief response to Roger Parloff and others (01/24/24).
43. Professor Akhil Reed Amar and Professor Vikram Amar withdraw from their “global” government for the “offices” and “officials” of the Constitution (01/27/24).
44. In Trump v. Anderson, the defendants’ theory would render unconstitutional every speaker and president pro tempore since 1789, as well as President Grant’s vice president and presidential nominee George McGovern (2/4/24).
45. Tillman in the Times: “A legal outsider, an unusual theory and the fate of the 2024 election” (2/7/24).
46. Video: Heritage Expert Panel on the Section 3 case (2/7/24).
47. A response to Peter Keisler, Richard Bernstein, and Michael Luttig, on Section 3 (2/7/24).

Over the past three years, the above reflects our key findings related to Section 3. We may have missed some items– especially during the tumult of rapid developments in recent months. Of course, during this time, we also published on topics entirely unrelated to Section 3 and the “office” and “officer” language of the Constitution, as we devoted ourselves to our teaching and other academic and professional duties.