Balkinization: Our correction and apology to Professor Tillman

Our correction and apology to Professor Tillman

John Mikhail

Today our lawyers sent a letter to Judge Daniels acknowledging an error in footnote 82 of our amicus brief in CREW et al., v. Trump. In addition to correcting this error, we would like to take this opportunity to apologize to Seth Barrett Tillman, to whom this footnote refers. Although we acted in good faith, we now recognize that we were wrong to cite blog posts criticizing Professor Tillman’s research without undertaking more extensive due diligence to determine whether those criticisms were justified. On the issue of Hamilton’s signature on the so-called Condensed Report, we now believe that Professor Tillman is likely correct, and his critics—including us—were mistaken.

In addition, we wish to acknowledge that footnote 82 makes several imprecise and unwarranted statements about Professor Tillman’s amicus brief. First, we wrote that Professor Tillman’s brief “overlooks a key Hamilton manuscript that undercuts its thesis and belies its description of archival material,” when we should simply have observed that, in our judgment, his brief does not clearly identify a key archival manuscript that bears on its thesis. Second, we wrote that a footnote (fn. 76) in Professor Tillman’s brief “incorrectly described the ASP print as ‘undated’ and ‘unsigned.’” In fact, Professor Tillman’s footnote did not use the words “ASP print” or “unsigned” but instead characterized the “ASP document” as “undated” and the “document in ASP” as “not signed by Hamilton.”

Finally, we wish to apologize to Professor Tillman for the manner in which we took issue with his findings and arguments in our amicus brief. Under the circumstances, a more appropriate way to proceed would have been to approach him directly and ask for clarification about his interpretation of the Condensed Report. Each of us would hope for more generous treatment from another scholar who criticized our own work in this fashion, so it was unfair not show the same level of respect to Professor Tillman.

We regret these errors and extend our apologies to Professor Tillman, whose diligent research we admire. We appreciate his long-standing position on how to interpret the Constitution’s reference to “Office of Profit or Trust under [the United States],” regardless of who is holding the office of President, and we respect his commitment and creativity in pursuing that interpretation. We look forward to continuing to engage the many important historical questions raised by this lawsuit.

Sincerely,

Jed Shugerman

John Mikhail

Jack Rakove

Gautham Rao

Simon Stern

Posted 8:30 PM by John Mikhail [link]