'Crackpot': Pro-Trump lawyer wants to rehash Mueller argument in classified document case

Two law professors with a long history of presenting "indefensible" theories to support former President Donald Trump are asking permission to argue to Judge Aileen Cannon that special counsel Jack Smith's classified documents case is unconstitutional, court records show.

Seth Barrett Tillman, a constitutional law professor who teaches in Ireland, and Josh Blackman, a professor at South Texas College of Law Houston, filed Thursday a request for permission to submit an amicus brief they say will prove Smith's case is unconstitutional.

"If Special Counsel Smith is an 'employee of the United States,' rather than an 'Officer of the United States,'" the brief argues, "then he cannot exercise the 'significant authority' of a United States Attorney."

Blackman and Tillman hope to present this argument to Cannon, the Florida federal court judge overseeing the case linked to 33 boxes of documents — including 17 marked as “top secret,” 54 as “secret” and 31 as “confidential” — uncovered at Trump's Mar-a-Lago estate in 2022.

Trump has pleaded not guilty to charges, accused Smith of conducting a political witch hunt, and launched what legal experts say is a delay campaign that hangs on him regaining the White House in 2025, when he could effectively kill the case.

But if Blackman and Tillman had their way, the case would be long dead before Trump faced off against President Joe Biden in November.

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The two are effectively rehashing an argument they made in 2018 when special counsel Robert Mueller investigated Russia's interference in the 2016 presidential election: that an employee does not have the power to pursue the prosecution.

Mueller's investigation proceeded and ultimately concluded that while Trump was not exonerated, he could not be prosecuted under federal law.

A New York Times profile of Tillman details the impact theories such as these have had on his professional reputation.

"In the world of American legal scholarship, Seth Barrett Tillman is an outsider in more ways than one," the Times writes. "An associate professor at a university in Ireland, he has put forward unusual interpretations of the meaning of the U.S. Constitution that for years have largely gone ignored — if not outright dismissed as crackpot."

But the pair took center stage in January when Trump's lawyers cited their argument that the former president was not beholden to the 14th Amendment's insurrectionist ban because he was not serving as an officer of the U.S.

Before the Supreme Court ultimately ruled states did not have the authority to enforce the 14th Amendment, Blackman and Tillman's argument was resolutely ridiculed by former conservative judge J. Michael Luttig in a lengthy thread on X.

"The former president and his amici supporters have put all of their eggs in Blackman’s and Tillman’s tattered basket of constitutional interpretation in the Supreme Court of the United States," wrote Luttig.

"Blackman’s and Tillman’s basket...is woven out of a palpable misinterpretation of the text of the Disqualification Clause that they do quote, witheringly compounded by their indefensible omission of the constitutional text from the Disqualification Clause that is most relevant to their (mis)interpretation of that Clause."

On Thursday, Slate writer Mark Joseph Stern spotted the request to file an amicus brief in the classified documents case and shared the news with his followers on X in simpler terms.

"Hopefully this means nothing to you — if so, I urge you remain blissfully ignorant," wrote Stern. "Nothing good can come of further inquiry."

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